Buholtz v. United States
| Docket Number | 16-408C |
| Decision Date | 04 August 2023 |
| Parties | KENNETH L. BUHOLTZ, Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Claims Court |
1
KENNETH L. BUHOLTZ, Plaintiff,
v.
UNITED STATES, Defendant.
No. 16-408C
United States Court of Federal Claims
August 4, 2023
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, and 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 [1]
ARMANDO O. BONILLA JUDGE
Kenneth L. Buholtz served in the United States Army as an enlisted soldier and later a commissioned officer, rising to the rank of Lieutenant Colonel. His 36-year military career-spanning 1975 through 2011-included two periods of
active duty bookending a near decade of service in the Army Reserve. Mr. Buholtz's military career derailed following civilian state and then federal criminal charges of child exploitation, resulting in his subsequent prosecution, conviction, and incarceration. Concurrently, Mr. Buholtz was diagnosed as suffering from post-traumatic stress disorder (PTSD) and panic disorder stemming from his deployments to Iraq.
In this action, Mr. Buholtz challenges the basis for and nature of his separation from the Army and raises myriad collateral issues presented to the ABCMR and the United States Departments of Defense and State over the last 20 years. In an Opinion and Order dated February 16, 2023, the Court denied Mr. Buholtz's motion to supplement the administrative record and, concomitantly, dismissed sua sponte Counts I, II, and IV of his fifth amended complaint for lack of subject matter jurisdiction. Buholtz v. United States, No. 16-408, 2023 WL 2054073 (Fed. Cl. Feb. 16, 2023). Pending before the Court are the parties' dispositive crossmotions with regard to the remaining counts in plaintiff's complaint (i.e., Counts III and V-XI). For the reasons set forth below, defendant's motion to dismiss or, in the alternative, for judgment on the administrative record is GRANTED and plaintiff's cross-motion for judgment on the administrative record is DENIED.
BACKGROUND
I. Military Service
Mr. Buholtz enlisted in the Army on March 28, 1975, and entered active duty on August 14, 1975. AR 2331-32, 3607-08.[2] On April 25, 1980, Mr. Buholtz earned 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 his voluntarily separation on September 30, 1992, during the post-Gulf War military force reduction under the Voluntary Separation Incentive (VSI) program. Codified at 10 U.S.C. §§ 1175-1175a, the VSI program offers a financial incentive to members of the armed forces to transfer to a reserve component in exchange for an annual annuity payment equaling 2.5 percent of the member's annual basic pay for each year of military service. See id. § 1175(a)(1) &(e)(1). Following his transfer to the Army Reserve, Mr. Buholtz began receiving annual VSI payments of approximately $16,000. AR 1419-20, 1779-81, 2336-37; ECF 75 at 27. On September 1, 1999, while continuing to serve in the Army Reserve, Mr. Buholtz was promoted to the rank of Lieutenant Colonel. AR 1671.
In the aftermath of the September 11, 2001 terrorist attacks, Mr. Buholtz was voluntarily recalled to active duty and served from January 8, 2002, until his retirement effective 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 deployed to Iraq in support of Operation Iraqi Freedom.[3]AR 720, 1702-06, 2662. Among Mr. Buholtz's military awards and decorations are the Bronze Star Medal "for exceptionally meritorious service" and the Army Commendation Medal "for meritorious service" during his deployments to Iraq. AR 1704, 2439-40. During his later deployments to theaters 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 to perform his military duties and recommended he be placed on the Temporary Disability Retirement List pending reexamination in February 2012 or a determination of permanent disability by the United States Army Physical Disability Agency (PDA).[4] See AR 2946-48. The PDA review was administratively terminated on July 11, 2011, as a consequence of Mr. Buholtz's proposed elimination (discussed below). See AR 270.
In the interim, on March 31, 2010-immediately following his civilian arrest for the alleged sexual assault of a minor and his release on bail (addressed below)-Mr. Buholtz submitted a Request for Voluntary Special (Expedited) Retirement. AR 2895-97. Upon receiving notice of the criminal charges, Division Commander Major General (MG) Daniel Allyn[5] initiated elimination proceedings on August 5, 2010, and notified Mr. Buholtz of his proposed separation. AR 2755-59; see, e.g., AR 505-11, 2751-53, 2921 (Board of Inquiry scheduling). In addition to specifying the reasons for the proposed elimination, MG Allyn advised Mr. Buholtz he could administratively challenge his involuntary separation or: tender his resignation in lieu of elimination; request discharge in lieu of elimination; apply for retirement in lieu of elimination; or appear before a Board of Inquiry to show cause for retention. AR 277-79. After initially requesting a Board of Inquiry, on October 4, 2010, Mr. Buholtz requested 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. MG Allyn recommended approval of Mr. Buholtz's request for retirement in lieu of elimination but recommended against Mr. Buholtz's request to process through medical disability channels. AR 376, 498, 2481.
On July 21, 2011, the Secretary of the Army, 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.[6] 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 criminal offense of sexual assault of a child (second degree felony).[7] AR 2760-62. On March 26, 2010, he was released on bond initially set at $1 million (reduced to $15,000 cash or $150,000 bond) and, relevant here, 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.[8] 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 similarly modified). 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.[9] 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.[10]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...
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