Doe v. Rice, Civ. No. 91-1169CCC.
| Decision Date | 06 November 1991 |
| Docket Number | Civ. No. 91-1169CCC. |
| Parties | John DOE; and Local 3936 of the American Federation of Government Employees, Plaintiffs, v. Honorable Donald RICE, Secretary of the United States Air Force; Lt. General Conaway, Chief of the National Guard Bureau; Puerto Rico Air National Guard; William Miranda-Marin, the Adjutant General of the Commonwealth of Puerto Rico; Colonel Manuel A. Guzman of the Puerto Rico Air National Guard; Colonel Gilberto Colon, as Personnel Officer of the Puerto Rico Air National Guard; all Officials in Their Individual and Official Capacity, Defendants. |
| Court | U.S. District Court — District of Puerto Rico |
Nora Vargas-Acosta, Vargas & Ramirez Law Offices, Rio Piedras, P.R., for plaintiffs.
Asst. U.S. Atty. Fidel Sevillano-del-Rio, Daniel F. López-Romo, U.S. Atty., Mayra Maldonado-Colón, Atty., Héctor Rivera-Cruz, Secretary of Justice, Antonio Fiol Matta, Director, Fed. Litigation Div., Comm. of P.R., for defendants.
The Court has before it the threshold issue of whether the administrative remedies available to plaintiff before the Air Force Board for Correction of Military Records (AFBCMR) are indeed futile, allowing us to entertain his claim before the same are exhausted. The matter was left unresolved in our Opinion and Order of June 6, 1991 769 F.Supp. 440 (docket entry 21), as the evidence then on record did not provide sufficient information allowing us to make a finding on the issue. In order to supplement the record with the relevant data, an evidentiary hearing was held before the Court on August 1, 1991. Based on the additional evidence presented at the hearing, defendants have once again moved for dismissal of the action (docket entries 29 & 30), alleging that the administrative remedy provided by the Board is in fact adequate. Plaintiffs have opposed the motion (docket entry 31), reasserting their previous claim that the remedies provided by the Board are inadequate and inappropriate in the particular case of plaintiff John Doe. The Court being fully apprised on the matter, now addresses the same.
We must begin by delineating the scope of our inquiry. As acknowledged in our previous order, the general rule is that courts should abstain from reviewing internal military affairs, unless an allegation concerning the deprivation of a constitutional right or a violation of applicable statutes and regulations is raised by a party, and he, in turn, has exhausted all available intra-service corrective measures. Mindes v. Seaman, 453 F.2d 197 (5th Cir.1971); Peñagaricano v. Llenza, 747 F.2d 55 (1st Cir.1984). This exhaustion requirement is not to be inflexibly applied, however, as it is conditioned to the availability of effective administrative remedies. McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969). Whether the administrative remedies provided by the AFBCMR are in fact effective is now the focus of our probe, as plaintiff has specifically alleged that its procedural scheme, the remedies it is entitled to provide, and the length of time it takes to do so combine themselves to render any attempt to resort to the same all but futile in the particular circumstances of this case. In our previous Order, we noted that a similar conclusion was reached by Judge Bratton, sitting in the District Court of New Mexico, in the case of Rew v. Ward, 402 F.Supp. 331 (D.N.M.1975), after a detailed examination of the procedures provided by the Board. Judge Bratton, in describing the adjudication of a typical case before the Board, noted several factors which, to his understanding, render the Board totally inept in affording claimants the desired remedy. The Court specifically noted, among other factors: the Board workload of 400 applications per month; its composition by civilian employees of the Department of Defense who were engaged in full time duties in responsibilities other than their BCMR memberships; the fact that hearings before the Board were entirely discretionary, and generally denied; the further aggravation faced by claimants in those cases where a hearing was in fact granted, as they had to assume the burden of travel and lodging expenses for themselves and their witnesses since the Board sits only in Washington, D.C.; the Board's lack of a formal discovery procedure and subpoena power; its reliance, when faced with legal issues, in the opinions of the Office of the Judge Advocates General, which were not made available to the applicant for comment; its failure to provide the applicant with any findings or the basis for a decision once one was reached; the fact that no interlocutory relief was available from the Board; and, finally, the average length of time it usually took the Board to consider a case, which in 1974 was from one to two years. See Rew, 402 F.Supp. at 333-36. Based on these considerations, the Court concluded that to pursue the administrative remedy before the Board "... would not only be expensive and time consuming but also totally useless." Rew, 402 F.Supp. at 336. Mindful of this finding, with which we agree in principle, we now consider whether the present organization of the Board has substantially improved allowing us to reach a different result.
Following our instructions, the evidence presented at the hearing was centered precisely on whether the situation described by the Court in Rew had indeed changed, providing an adequate administrative remedy. Plaintiffs presented initially as evidence the testimony of Mr. Cruz A. Valentin, the Deputy Advocate for the Office of Veterans Affairs for the Commonwealth of Puerto Rico. Mr. Valentin testified that one of the functions of his office is to represent Veterans before the different military boards for the correction of records, although most of his experience has been with the Discharge Review Board of the Army, and not with the AFBCMR. He identified fifteen cases filed before the Discharge Review Board in which the issuance of a decision took between two (2) and five (5) years. However, no evidence was presented by him as to how long it took the AFBCMR to issue a decision in cases actually filed before it.
Plaintiffs' second witness was Mr. Rafael Antonio Zapata, who was active in the military for thirty six (36) years and, as plaintiff, also held both a military and a civilian position with the Puerto Rico Air National Guard (PRANG). In 1981 he was separated from his military position and terminated from his civilian job with the PRANG, and on January 12, 1983 he filed an application before the AFBCMR seeking the deletion of certain derogatory remarks from his record, as well as reinstatement and back pay. A final decision was issued by the AFBCMR on April 30, 1984, and notified to him on May 10, 1984, nearly sixteen (16) months after the initial application. In its decision, the Board ordered the alleged derogatory remarks to be stricken from his record, but expressly denied his request for reinstatement to the military position. In addition, and as to his request for civilian reinstatement, the Board concluded that it was not "empowered with authority to accomplish such action." See Plaintiffs' Exhibit 1.
Plaintiff John Doe also testified at the hearing. He had been a member of the PRANG since 1967, and was employed by it since 1969 as an aircraft electrician. On September and October of 1990, he was separated from both his military and civilian positions with the Guard, upon testing positive for the H.I.V. virus....
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