Buholtz v. United States
| Decision Date | 16 February 2023 |
| Docket Number | 16-408C |
| Parties | KENNETH L. BUHOLTZ, Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Claims Court |
KENNETH L. BUHOLTZ, Plaintiff,
v.
UNITED STATES, Defendant.
No. 16-408C
United States Court of Federal Claims
February 16, 2023
NOT FOR PUBLICATION
Kenneth L. Buholtz, McKinney, Texas, pro se.
Delisa M. Sanchez, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Washington DC, for defendant, with whom on the briefs were Brian M. Boynton, Principal Deputy Assistant Attorney General, Patricia M. McCarthy, Director, Martin F. Hockey, Jr., Deputy Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Washington DC. Patrick D. Kummerer, Major, Judge Advocate General's Corps, Litigation Attorney, U.S. Army Legal Services Agency, Fort Belvoir, VA, Of Counsel.
OPINION AND ORDER
ARMANDO O. BONILLA, JUDGE
Kenneth L. Buholtz served in the United States Army as an enlisted service member and then a commissioned officer, rising to the rank of Lieutenant Colonel. His military service-spanning from 1975 through 2011-included two periods of active duty bookending a near decade in the Army Reserve. Mr. Buholtz's military career derailed following civilian criminal charges of child exploitation, resulting in his prosecution, conviction, and incarceration. Concurrently, Mr. Buholtz was diagnosed as suffering from post-traumatic stress disorder (PTSD) and panic disorder stemming from his tours of duty in Iraq.
In this action, Mr. Buholtz challenges the basis for and nature of his separation from the Army and numerous collateral issues presented to the Army Board for Correction of Military Records (ABCMR or Board) and the United States Department of State. Pending before the Court is plaintiff's motion to supplement the administrative record (ECF 132).[1] For the reasons set forth below, plaintiff's motion is DENIED and this action is DISMISSED-IN-PART for lack of subject matter jurisdiction.
BACKGROUND
I. Military Service
On March 28, 1975, Mr. Buholtz enlisted in the Army as a Private First Class and entered active duty on August 14, 1975. AR 2331-32, 3607-08.[2] On April 25, 1980, Mr. Buholtz received his commission and was appointed a Second Lieutenant Regular Army Aviation Officer through the Michigan State University Reserve Officers' Training Corps (ROTC). AR 720, 1884, 1886. Mr. Buholtz remained on active duty until September 30, 1992, when he voluntarily separated under the Voluntary Separation Incentive (VSI) program during the post-Gulf War military force reduction. AR 1419-20, 1779-81, 2336-37. On September 1, 1999, while continuing to serve in the Army Reserve, Mr. Buholtz was promoted to the rank of Lieutenant Colonel. AR 1671. Recalled to active duty in the aftermath of the September 11, 2001 terrorist attacks, Mr. Buholtz served from January 8, 2002, until October 31, 2011. AR 1441-42, 2662-63, 2727-29.
Relevant here, between June 2003 and April 2004, Mr. Buholtz served in the Republic of Colombia, South America. AR 720, 3991. Thereafter, from 2006 to 2007 and again in 2009, Mr. Buholtz served two tours of duty in Iraq in support of Operation Iraqi Freedom.[3] AR 720, 1702-06, 2662. Among his military awards and decorations, Mr. Buholtz was awarded the Bronze Star Medal "for exceptionally meritorious service" and the Army Commendation Medal "for meritorious service," respectively, during his deployments to Iraq. AR 1704, 2439-40. During his later
deployments to areas of combat operations, Mr. Buholtz began exhibiting symptoms of PSTD and panic disorder-a diagnosis later confirmed by the Medical Evaluation Board (MEB). AR 2968-87 (Jan. 24, 2011 MEB psychological examination and diagnosis); AR 2988-2994 (Jan. 14, 2011 MEB physical examination and diagnosis). On May 6, 2011, the Physical Evaluation Board (PEB) found Mr. Buholtz physically unfit for duty and recommended that he be placed on the Temporary Disability Retirement List pending reexamination in February 2012 or a determination of permanent disability by the U.S. Army Physical Disability Agency (PDA).[4] See AR 2946-48. The PDA review was administratively terminated on July 11, 2011. See AR 270.
In the interim, on March 31, 2010-immediately following his civilian arrest for the alleged sexual assault of a minor child and release on bail (discussed below)- Mr. Buholtz submitted a Request for Voluntary Special (Expedited) Retirement. AR 2895-97. On August 5, 2010, after receiving notice of the pending criminal charges, Mr. Buholtz's Command initiated adverse elimination proceedings. AR 2755-59; see, e.g., AR 505-11, 2751-53, 2921 (Board of Inquiry scheduling). On October 4, 2010, Mr. Buholtz requested a Voluntary Retirement in Lieu of Elimination, seeking to be released from active duty and placed on the retired list pending the conclusion of the above-referenced MEB/PEB process. AR 713-15.
On July 21, 2011, the Secretary of the Army, by and through the Deputy Assistant Secretary of the Army (Review Boards), Manpower and Reserve Affairs, denied Mr. Buholtz's request for medical disability retirement and, instead, approved his retirement in lieu of elimination. AR 270. Consistent with the recommendation of the Army Grade Determination Review Board (AGDRB), Mr. Buholtz was separated effective October 31, 2011, and placed on the retired list effective November 1, 2011, with a reduction in grade from Lieutenant Colonel (O-5) to Major (O-4). AR 270; see AR 271-72, 702-03, 719, 1303-04, 2370-72. The reduction in grade was based on the AGDRB's determination that Mr. Buholtz last served satisfactorily as a Major. AR 272. Mr. Buholtz's Certificate of Release or Discharge from Active Duty (DD Form 214) lists his Type of Separation as "Retirement" and Character of Service as "Honorable," but includes the Separation Code "RNC" based upon "Unacceptable Conduct." AR 2662. As of his retirement, Mr. Buholtz was credited with 27 years and one day of military service under 10 U.S.C. § 1405.[5] AR 702.
II. Civilian Criminal Proceedings
On March 22, 2010, Mr. Buholtz was arrested on a Collin County (Texas) arrest warrant, signed by a magistrate judge, on the charged offense of sexual assault of a child (a second degree felony).[6] AR 2760-62. On March 26, 2010, he was released on bond initially set at $1 million (once reduced to $15,000 cash or $150,000 bond) and ordered to wear a global positioning satellite (GPS) electronic ankle monitor bracelet. AR 2762, 2764-65. Within hours of his release, and again on April 7, 2010, Mr. Buholtz was arrested for violating a condition of his bond and the terms of a March 23, 2010 Emergency Protective Order directing he stay away from his alleged victim.[7] AR 2774-76; see also AR 2770-73. On April 23, 2010, Mr. Buholtz was again released on bond with stricter conditions. AR 165-67, 2784- 85; see also AR 2786-89 (Military Protective Order modifications). On December 9, 2010, a Collin County grand jury returned a True Bill of Indictment against Mr. Buholtz, charging him with eighteen (18) counts of sexual abuse of a minor.[8]AR 301-04.
On June 8, 2011, a federal grand jury sitting in the Eastern District of Texas returned a one-count indictment (under seal) against Mr. Buholtz, charging him with interstate transportation of a minor with the intent to engage that minor in sexual activity, in violation of 18 U.S.C. § 2423(a). See United States v. Buholtz, No. 11-cr-135 (E.D. Tex.) (ECF 1). Immediately following his June 13, 2011 arrest, Mr. Buholtz made his initial appearance before a United States magistrate judge, was arraigned and ordered detained pending trial. See id. (ECF 5, ECF 10 at 1).
On November 14, 2011, Mr. Buholtz pleaded guilty to a one-count superseding indictment charging him with interstate transportation of a minor for sexual purposes in violation of 18 U.S.C. § 2423(a). See Buholtz, No. 11-cr-135 (E.D. Tex.) (ECF 45, 49-56). In pleading guilty, Mr. Buholtz admitted transporting a minor from California to Texas in March 2007 with the intent to engage in sexual
activity and, in fact, engaged in sexual activity with the minor in both states.[9]See Buholtz, No. 11-cr-135 (E.D. Tex.) (ECF 55). For the commission of this federal offense, on March 25, 2013, Mr. Buholtz was sentenced to a ten-year term of imprisonment, followed by a five-year term of supervised release, and ordered to pay a mandatory $100 special assessment.[10] See Buholtz, No. 11-cr-135 (E.D. Tex.) (ECF 85-86). Mr. Buholtz was released from federal prison on February 3, 2020,[11] and began serving his term of supervised release.
Mr. Buholtz was rearrested on November 2, 2022, in the Eastern District of Texas for allegedly violating the terms of his supervised release.[12] See Buholtz, No. 11-cr-135 (E.D. Tex.) (ECF No. 147). During his November 3, 2022 initial appearance, the duty magistrate judge granted the United States' motion to detain Mr. Buholtz.[13] See id. (ECF 147-50). Thereafter, on December 15, 2022, the magistrate judge conducted a final revocation hearing and found "ample evidence" Mr. Buholtz violated the terms of his supervised release. See id. (ECF 158, 160). The magistrate judge continued Mr. Buholtz's detention and recommended an 18-month term of imprisonment, followed by five years of supervised release. See id. (ECF 160 at 7). The magistrate judge further recommended imposing an additional special condition that "[Mr. Buholtz] must not allow any female friends, associates, colleagues, or tenants to reside on [his] property or at [his] residence" during his term of supervised release. See id.
On January 25, 2023, Mr. Buholtz appeared before a United States district judge for allocution. See id. (ECF 163). Save the recommended 18-month prison term, the district judge adopted the findings and conclusions of the magistrate judge; the district judge determined an upward variance was warranted and sentenced Mr. Buholtz to a 36-month term of incarceration. See id. (ECF 163-64). Judgment was...
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