843 F.2d 528 (D.C. Cir. 1988), 86-5547, Vietnam Veterans of America v. Secretary of the Navy

Docket Nº:86-5547, 86-5577, 86-5676.
Citation:843 F.2d 528
Case Date:March 29, 1988
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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843 F.2d 528 (D.C. Cir. 1988)



SECRETARY OF THE NAVY, Appellant (Two Cases).




Nos. 86-5547, 86-5577, 86-5676.

United States Court of Appeals, District of Columbia Circuit

March 29, 1988

Argued Oct. 23, 1987.

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[Copyrighted Material Omitted]

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Appeals from the United States District Court for the District of Columbia (Civil Action No. 85-03208); George H. Revercomb, J.

Edward R. Cohen, Atty., Dept. of Justice, with whom Richard K. Willard, Asst. Atty. Gen. and Douglas Letter, Atty., Dept. of Justice, Washington, D.C., were on the brief for Secretary of the Navy, appellant in Nos. 86-5547 and 86-5676 and appellee in No. 86-5577. Joseph E. diGenova, U.S. Atty., and William Kanter, Freddi Lipstein and Mary T. Koehmstedt, Attys., Dept. of Justice, Washington, D.C., also entered appearances for Secretary of the Navy.

Michael J. McDonald, with whom Barton F. Stichman, Washington, D.C., was on the brief for Vietnam Veterans of America, et al., appellees in No. 86-5577 and cross-appellants in Nos. 86-5547 and 86-5676. David F. Addlestone, Washington, D.C., also entered an appearance for Vietnam Veterans of America, et al.

Before BUCKLEY and WILLIAMS, Circuit Judges, and HOGAN, [*] District Judge.

Opinion for the Court filed by Circuit Judge WILLIAMS.

WILLIAMS, Circuit Judge:

Among the steps taken to address the problem of drug use in the armed forces in the early 1970s were two memoranda 1 issued by the Secretary of Defense or his deputy specifying more lenient standards for discharging members of the armed forces on less than honorable terms and providing for possible upgrading of prior drug-related discharges. We deal here with the Navy's handling of the memorandum governing upgrades. We find that its language is not specific or prescriptive enough to create rights or to bind agency discretion.


The Department of Defense initiated its drug rehabilitation policy on October 23, 1970 with Directive 1300.11, establishing general "policies for preventing and eliminating drug abuse by personnel ... and for restoring members of the armed forces so involved to useful functions." Brief for Appellant, Addendum A at 1. Eight months later, on July 7, 1971, Deputy Secretary of Defense David Packard amplified Directive 1300.11 with a memorandum here dubbed "the Packard Memorandum," which in pertinent part states that

evidence developed by, or as a direct or indirect result of urinalyses administered for the purpose of identifying drug users may not be used in any disciplinary action under the Uniform Code of Military Justice or as a basis for supporting, in whole or part, an administrative discharge under other than honorable conditions. Similarly, a military member may not be subject to disciplinary action under the Uniform Code of Military Justice.

Brief for Appellant, Addendum B.

On August 13, 1971 then Secretary of Defense Melvin Laird issued what is here known as the Laird Memorandum, directing reconsideration of prior discharges in light of the Packard Memorandum. He wrote:

Consistent with Department of Defense Directive 1300.11, October 23, 1970, and my memorandum of July 7, 1971 [the Packard Memorandum], concerning rehabilitation and treatment of drug users, administrative discharges under other than honorable conditions issued solely on the basis of personal use of drugs or possession of drugs for the purpose of such use will be reviewed for recharacterization.

Accordingly, each Secretary of a Military Department, acting through his Discharge Review Board, will consider applications for such review from former service members. Each Secretary is authorized

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to issue a discharge under honorable conditions upon establishment of facts consistent with this policy. Former service members will be notified of the results of the review. The Veterans' Administration will also be notified of the names of former service members whose discharges are recharacterized.

The statute of limitations for review of discharges within the scope of this policy will be in accordance with 10 United States Code 1553. 2

This policy shall apply to those service members whose cases are finalized or in process on or before July 7, 1971.

Brief for Appellant, Addendum C. Laird issued a second memorandum eight months later, extending the policy to service members who received punitive discharges or dismissals resulting from court-martial sentences based on drug use or possession, see Brief for Appellant, Addendum A, but its terms do not materially change the character of the first memorandum, so far as it is here at issue. For simplicity we use the term Laird Memorandum to cover both. 3

A word on the basic structure of the discharge procedure is in order. Three types of administrative discharge are available: (1) honorable; (2) general (under honorable conditions); or (3) under other than honorable conditions (previously labeled "undesirable"). See 32 C.F.R. Part 41, App. A, Part 2, C(2)(b) (1987). 4 Whether a service member receives an honorable, general, or undesirable discharge depends largely on the reason the member's service is terminated. See Brief for Appellant, Addendum D.

Discharges by the Department of the Navy may be reviewed by either or both of two administrative bodies: the Naval Discharge Review Board ("NDRB") and the Board for Correction of Naval Records ("BCNR"). The NDRB, which consists of five Navy officers, is empowered to review a discharge and recharacterize it "to reflect its findings." 10 U.S.C. Sec. 1553(b). Any veteran seeking NDRB review is entitled to a hearing, id. Sec. 1553(c), but a request for review must be made within 15 years of the date of discharge, id. Sec. 1553(a).

The BCNR is a wholly separate body staffed by civilians. Its mandate--to correct any Navy record when "necessary to correct an error or remove an injustice," id. Sec. 1552(a)--has been viewed as broader than that of the NDRB. See Strang v. Marsh, 602 F.Supp. 1565, 1570 (D.R.I.1985). Unlike the NDRB, it is not required to grant a hearing, see id. at 1570 (citing Kalista v. Secretary of the Navy, 560 F.Supp. 608, 616 (D.Colo.1983)). And "while in limited circumstances it will review a case not yet heard by a DRB, it typically hears cases where a DRB has already denied full relief." Strang v. Marsh, 602 F.Supp. at 1570. The statute of limitations for BCNR action is "three years after [a claimant] discovers the error or injustice...." 10 U.S.C. Sec. 1552(b). However, the BCNR "may excuse a failure to file within three years after discovery if it finds it to be in the interest of justice." Id.

Department of Defense regulations identify two basic grounds for upgrade by the NDRB: impropriety or inequity in the discharge under review. See 32 C.F.R. Sec. 70.9(b) & (c) (1987). As the court explained in Strang v. Marsh:

Review for "propriety" looks to whether a discharge was illegal when it was given, or has effectively been rendered illegal by subsequent policy changes

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made expressly retroactive to the type of discharge at issue. [See id. Sec. 70.9(b) ]. Review for equity looks to whether, considering all the factual circumstances surrounding an applicant's history and service record, as well as current service policy, an otherwise proper discharge ought to be upgraded as a matter of equity. [See id. Sec. 70.9(c) ].

602 F.Supp. at 1571 n. 7. Although the Laird Memorandum's vagueness makes classification under these two heads a little treacherous, it ultimately appears to fit, if anywhere, within the notions guiding review for inequity.

The suit here was brought by two servicemen discharged from the Navy prior to the Laird Memorandum, Roosevelt L. Robinson and Jorge L. Fuentes, and by the Vietnam Veterans of America. The plaintiffs sue on behalf of the two individuals themselves and a class of former Navy and Marine personnel similarly situated. In essence they claim that the Laird Memorandum requires the Navy to upgrade all less than honorable discharges issued before July 7, 1971 and based solely on drug use or possession, regardless of any other evidence of misconduct found in the service members' records. 5

Robinson sought an upgrade from the NDRB under the Laird Memorandum in September 1978, eight years after receiving an undesirable discharge. The NDRB in June 1979 denied recharacterization, stating that "the applicant raised no substantive issue concerning the propriety or equity of the discharge." Joint Appendix ("J.A.") at 642. The NDRB found that although Robinson's discharge preceded 1971 and was based solely on the possession of drugs, "there is sufficient aggravation, specifically the civil conviction and three non-judicial punishments, to fully justify that the discharge should not be recharacterized." Id. at 647.

On August 9, 1983 Robinson again asked the NDRB for recharacterization under the Laird Memorandum. Finding it appropriate to consider Robinson's service record as a whole, the NDRB again denied the upgrade, citing his civil conviction and non-judicial punishments, as well as his admitted constant drug use in a "hostile fire zone" and during sentinel duty while responsible for security. The Board concluded that "[i]t is clear from the wording of the memorandum, that recharacterization was not directed, but only that a review, with an eye to recharacterization if warranted, be conducted." Id. at 628.

Robinson then turned to the BCNR. It denied the petition in April 1985, taking a similar view of the Laird Memorandum--that while it "dictates that discharges such as [Robinson's] will be reviewed for recharacterization, it does not make recharacterization mandatory." Id. at 222. The Board emphasized that Robinson was "found in possession of dangerous drugs and marijuana on several occasions,"...

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