Dickson v. Secretary of Defense
| Decision Date | 31 October 1995 |
| Docket Number | 94-5227,Nos. 94-5190,s. 94-5190 |
| Citation | 314 U.S.App. D.C. 345,68 F.3d 1396 |
| Parties | Dennis A. DICKSON, et al., Appellants, v. SECRETARY OF DEFENSE, et al., Appellees. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeals from the United States District Court for the District of Columbia (Nos. 92cv02426 & 93cv00952).
Donald H. Smith, Washington, DC, argued the cause, for appellants. With him on the briefs were Ronald S. Flagg, Gershon M. Ratner, and David F. Addlestone. Joseph R. Guerra entered an appearance, for appellants.
R. Craig Lawrence, Assistant United States Attorney, argued the cause, for appellees. With him on the brief was Eric H. Holder, Jr., United States Attorney. Daniel F. Van Horn, John D. Bates, and Michael T. Ambrosino, Assistant United States Attorneys, entered appearances, for appellees.
Before: WALD, SILBERMAN, and ROGERS, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALD.
Appellants Dennis Dickson, Bobby Haire, and Edward Hodges seek reversal of the district court's dismissal of their petitions to review decisions by the Army Board for Correction of Military Records ("Board"), which had refused to waive the limitations period for applications for upgrades of their discharge classifications. Each of these Army veterans applied for an upgrade long after the three-year limitations period, and in each case, the Board found that a waiver did not meet the statutory standard of being "in the interest of justice." The district court granted the government's motion to dismiss in each case, on the grounds that the Board's decisions were not reviewable. We hold that the Board's waiver determinations are reviewable, and further, that in each of these cases, the determination that a waiver was not "in the interest of justice" was arbitrary and capricious because the Board failed to provide any adequate explanation for its conclusions. We therefore reverse the judgments of dismissal and instruct the district court to vacate the Board's decisions and remand the cases to the Board for further consideration.
The Army Board for Correction of Military Records is composed of civilians who evaluate former servicemembers' allegations of errors or injustices in their military records. This Board, as well as similar boards for the other branches of the armed services, derives its authority from 10 U.S.C. Sec. 1552(a)(1), 1 which in relevant part provides:
The 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.... [S]uch corrections shall be made by the Secretary acting through boards of civilians of the executive part of that military department.
The limitations period is set forth in 10 U.S.C. Sec. 1552(b):
No correction may be made under subsection (a)(1) unless the claimant or his heir or legal representative files a request for the correction within three years after he discovers the error or injustice. However, a board established under subsection (a)(1) may excuse a failure to file within three years after discovery if it finds it to be in the interest of justice.
Dickson voluntarily enlisted in the Army in 1964, and after approximately nine months of service he was granted a two-week leave. Dickson was five days late in returning from leave, and was convicted by court-martial for this absence. After his release from the stockade, Dickson began to drink heavily. He was absent without leave on two more occasions, for which he was again convicted by court-martial. After these events, the Army began proceedings to discharge Dickson for inability to adapt to military life, leading to his discharge, in 1965, under "other than honorable conditions."
Nearly 20 years later, in 1984, Dickson applied to the Board for an upgrade of his discharge classification. He claimed that his discharge had been unjust because he was not counseled before signing the discharge papers. In addition, he claimed that the discharge was unduly harsh because his offenses were mitigated by personal and family problems, and that under current Army standards he would have received a more favorable discharge.
The Board denied Dickson's application. In its decision, the Board noted Dickson's contention that he would have received a more favorable discharge under today's standards, and recited some of the facts Dickson had alleged about his situation. The Board then stated that the alleged error or injustice "was, or with reasonable diligence should have been, discovered" on the date of his discharge. The Board's conclusion read:
The subject application was not submitted within the time required. The applicant has not submitted, nor do the records contain, sufficient justification to establish that it would be in the interest of justice to excuse the failure to file within the time prescribed by law.
Haire enlisted in the Army in 1949, received an honorable discharge after nearly 2 1/2 years of service, and later reenlisted. During his second enlistment, while stationed in Germany, he requested leave to return home to deal with troubles involving his wife, but his request was not granted. Around that time, he began to drink heavily. Haire was convicted by summary court-martial of being drunk and absent without leave, and later convicted for unlawfully carrying a concealed weapon, for missing a bed check, and fighting. In 1955, after the court-martials, Haire received an "undesirable" discharge from the Army.
In 1986, more than 30 years after his discharge, Haire applied to the Board for an upgrade of his discharge classification. Haire's main argument was that he had only recently learned that the Army had changed its procedures for dealing with alcohol abuse, and that under current standards, he would have received counseling and treatment, and likely would not have received an undesirable discharge.
The Board issued a decision in which it noted Haire's contention that "in today's Army he would either receive treatment or a better discharge." The Board did not address the merits or relevancy of this contention, but instead determined that the "alleged error or injustice was, or with reasonable diligence should have been discovered" on the date of discharge, and concluded, as with Dickson:
The subject application was not submitted within the time required. The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to excuse the failure to file within the time prescribed by law.
Hodges enlisted in the Army in 1954, and served in Korea. Upon returning to the United States, Hodges took a 30-day leave to see his fiancee, and during his visit they broke off their engagement. Hodges reported to duty in Kansas, but stayed drunk for most of the next several months. He was disciplined for minor offenses and later failed to report for duty. He pleaded guilty in a general court-martial for absence without leave and was subsequently discharged under "other than honorable conditions" in 1957.
In 1979, 22 years after his discharge, Hodges first inquired about changing his discharge classification. He finally completed his application to the Board in 1985. In his application, Hodges claimed that he "did not know a discharge upgrade was possible until recently." In addition, he submitted evidence of his personal problems and alcohol abuse.
The Board denied Hodges' application. In its opinion, the Board noted Hodges' contention that his discharge classification was "unduly harsh," but did not address the merits of this argument. The Board found that the alleged error or injustice "was, or with reasonable diligence should have been, discovered" on the date of his discharge. The Board further stated, in language virtually identical to that used for Haire and Dickson:
The subject application was not submitted within the time required. The applicant has not presented, nor do the records contain, sufficient justification to establish that it would be in the interest of justice to excuse the failure to file within the time prescribed by law.
The district court granted the government's motions to dismiss the petitions to review these Board determinations. See Dickson v. Secretary of Defense, No. 93-952, Mem.Op. (D.D.C. May 6, 1994) (Richey, J.) (Dickson and Haire) ("Mem.Op."); Hodges v. Secretary of Defense, No. 92-2426, Mem.Op. (D.D.C. June 24, 1994) (Harris, J.). 2 Specifically, the district court found that Board waiver determinations are not judicially reviewable. Relying in part on an earlier district court decision, 3 and rejecting a contrary district court decision, 4 the court found that the language of Sec. 1552(b) indicates that this statute confers exclusive discretion on the Board to make waiver determinations. See Mem.Op. at 10-11. The question of the reviewability of Board waiver determinations is subject to de novo review on appeal.
The government argues that the district court was correct in finding that waiver determinations are not reviewable because they involve matters committed to agency discretion under the Administrative Procedure Act ("APA"). See 5 U.S.C. Sec. 701(a)(2). The statute granting waiver authority to the Board, the government argues, contains no judicially manageable standards against which a court may analyze the Board's exercise of discretion, and thus does not envision review. See 10 U.S.C. Sec. 1552(b). In the alternative, the government argues that none of these decisions was arbitrary and capricious because petitioners waited from 20 to 30 years to seek relief,...
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