Jenkins v. Speer
| Citation | 258 F.Supp.3d 115 |
| Decision Date | 29 June 2017 |
| Docket Number | Civil Action No.: 15-1413 (RC). |
| Parties | George Melvin JENKINS, Plaintiff, v. Robert M. SPEER, Acting Secretary, United States Department of the Army, et al., Defendants. |
| Court | United States District Courts. United States District Court (Columbia) |
Brian Andrew Hill, Ann Klibaner Sultan, Homer Edward Moyer, Jr., Miller & Chevalier, Chartered, Washington, DC, for Plaintiff.
Derrick Wayne Grace, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.
GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF'S MOTION FOR ORAL ARGUMENT
Plaintiff, George Melvin Jenkins, was administratively discharged from the Army in 1988. Mr. Jenkins later unsuccessfully requested that the Army Board for Correction of Military Records (ABCMR) upgrade the status of his discharge to honorable. Now, Mr. Jenkins seeks review of the ABCMR's decision under the Administrative Procedure Act (APA), 5 U.S.C. §§ 701 – 706. Both parties move for summary judgment. Because the ABCMR's decision was arbitrary in that it neglected to address evidence presented by Mr. Jenkins, the Court grants in part and denies in part these motions and remands this matter to the ABCMR.
Mr. Jenkins entered into active duty in the Army in 1979, at age 17. 1st Jenkins Decl. ¶ 3, JA2 145. From 1981 to 1982, Mr. Jenkins was deployed in Korea. ABCMR Record at 2 (Jun. 14, 2016), JA 9. After serving in Korea, Mr. Jenkins was posted to a base in Fort Irwin, California, for training.
During Mr. Jenkins's service at Fort Irwin, an M–3 submachine gun went missing. General Court–Martial Order No. 3, JA 69. Investigators linked the missing gun to Orlando Crespo, "an Army–Air Force Exchange Service employee who sold retail and snack items." United States v. Jenkins , 18 M.J. 583, 584 (A.C.M.R. 1984), JA 72. Mr. Crespo was a civilian, but had previously served in the military. Id. When confronted by investigators, Mr. Crespo produced the M–3 and named Mr. Jenkins as the source. Id. Mr. Crespo claimed that Mr. Jenkins had traded him the M–3 in exchange for potato chips, soda, and cigarettes. Id. Mr. Crespo also claimed that he had mistakenly believed the M–3 was a "grease gun" for lubricating vehicles, rather than a firearm. Id.
Mr. Jenkins was charged with two separate offenses—(1) stealing the M–3 and (2) disposing of it in violation of Articles 108 and 121 of the Uniform Code of Military Justice, respectively. General Court–Martial Order No. 3, JA 69. Mr. Jenkins maintained his innocence and was tried by a general court-martial at Fort Hood, Texas. General Court–Martial Order No. 3, JA 69. The prosecution for disposition was "based solely on the testimony of Orlando Crespo." United States v. Jenkins , 18 M.J. 583, 584 (A.C.M.R. 1984), JA 72. Apparently crediting Mr. Crespo's story, the court-martial convicted Mr. Jenkins on both the charge of larceny and the charge of unlawful disposition. Id. at 583 ; General Court–Martial Order No. 3, JA 69. Mr. Jenkins was sentenced to "confinement at hard labor for two years" and a bad conduct discharge. General Court–Martial Order No. 3, JA 69.
Despite a request by Mr. Jenkins's trial counsel, Mr. Crespo's disciplinary records from his time in the service were not provided to Mr. Jenkins before the trial. Jenkins , 18 M.J. at 584, JA 72. The records, received after Mr. Jenkins was convicted, showed that Mr. Crespo had been convicted of disrespect to an officer and several other offenses—including forging his commander's signature (although several of the convictions were later disapproved). Id. The United States Army Court of Military Review (ACMR) considered Mr. Jenkins's conviction in light of Mr. Crespo's disciplinary history3 and ultimately set aside both of Mr. Jenkins's convictions4 with the instruction that "[a] rehearing on the larceny and wrongful disposition charges may be ordered." United States v. Jenkins , CM 443761 (A.C.M.R. July 31, 1987), JA 76. While his convictions were under review, Mr. Jenkins served some of his sentence of confinement at hard labor5 and was eventually released and placed on excess leave at his home in Indiana. ABCMR Record at 2–3 (Jun. 14, 2016), JA 9–10.
Mr. Jenkins's convictions were set aside on July 31, 1987. United States v. Jenkins , CM 443761 (A.C.M.R. July 31, 1987), JA 76. Shortly after, Mr. Jenkins filed a petition for review with the United States Court of Military Appeals, which was docketed on August 31, 1987. Petition for Grant of Review, JA 194; Docketing Notice, United States v. Jenkins , No. 443761 (C.M.A. 1987), JA 193. Mr. Jenkins moved to withdraw the petition shortly after filing it, and the petition was withdrawn on October 9, 1987. Order, United States v. Jenkins , No. 443761 (C.M.A. Oct. 9, 1987).
In November of 1987 an Army lawyer—Captain Hyder—sent a letter to Mr. Jenkins at Mr. Jenkins's home in Indiana. Letter from Gary D. Hyder (Nov. 30, 1987), JA 148; 1st Jenkins Decl. ¶ 6, JA 146. The cover letter read, in whole, as follows:
Letter from Gary D. Hyder (Nov. 30, 1987), JA 148. Enclosed with the cover letter was a three-page form used to request a chapter 10 administrative discharge from the Army. A chapter 10 discharge, or discharge "for the good of the service," may be taken by servicemembers facing a court-martial.6 See generally , Army Regulation 635–200, ECF No. 36–1, Ex. B. The chapter 10 discharge form included a variety of acknowledgements to be signed both by the servicemember requesting discharge and their counsel. Complete Chapter 10 Form, ECF No. 29–7, Ex. B.
According to Mr. Jenkins, the cover letter and chapter 10 discharge form constitute the entire universe of advice provided by Mr. Hyder. Mr. Jenkins said that he never met with Mr. Hyder and does not recall talking with him by phone. 1st Jenkins Decl. ¶ 7, JA 146. Mr. Jenkins states that:
Except for what he said in that letter, Captain Hyder never talked to me about what might happen if I did not apply for an administrative discharge. He never discussed the court decisions with me or explained what legal errors the courts had found in my case. He never suggested that the Clemency Board decision or my having already served time at hard labor might make a difference. Captain Hyder never told me that there might not be another trial. He did not tell me that if a rehearing was not ordered within a couple of weeks of his letter, all charges would have to be dismissed. He did not tell me that the witnesses who testified at trial might not be available again, and he never told me that the prosecution's key witness had sent a letter to the judge saying that he had lied at my trial to protect himself.
1st Jenkins Decl. ¶¶ 8–9, JA 146. The Army does not identify any further letters, conversations, or other forms of communication between Captain Hyder and Mr. Jenkins.
Mr. Jenkins signed the third page of the form and returned it to Captain Hyder. On February 18, 1988, Mr. Jenkins was discharged from the Army under chapter 10 under "other than honorable conditions." Mem. from Gerald T. Bartlett, JA 184; Certificate of Release or Discharge from Active Duty, JA 170. After Mr. Jenkins was discharged, the charges against him were dismissed (instead of proceeding to another court-martial) because "a rehearing is no longer practicable." General Court–Martial Order No. 3, JA 183.
In briefing his summary judgment motion, Mr. Jenkins offers a new argument concerning the chapter 10 discharge form. Both parties agree that Mr. Jenkins signed the third page of the form and returned it. Mr. Jenkins now asserts that the form he signed was different than the form included in the record. The form that he claims to have signed included several check-off options for indicating that the applicant had received legal advice from counsel. Incomplete Chapter 10 Form, ECF No. 29–6, Ex. A. According to Mr. Jenkins, he never selected any of the options. 2d Jenkins Decl. ¶¶ 5–6, ECF No. 29–5. The version of the form in the record7 does not include the check-off lines and simply states that the legal advice has been provided.8 Complete Chapter 10 Form, ECF No. 29–7, Ex. B. Mr. Jenkins therefore argues that someone else substituted the pages to yield the completed form, which he claims he did not see or sign.9 2d Jenkins Decl. ¶¶ 9–10. Mr. Jenkins acknowledges that this argument and the incomplete version of the form have never been placed before the ABCMR. See Pl.'s Mem. P. & A. Supp. Mot. Summ. J. (Pl.'s MSJ) at 19–31, ECF No. 29–1.
Two decades after the events described above, Mr. Jenkins made his first attempt to upgrade his discharge by filing a pro se application to the ABCMR. The application was summarily rejected in 2010. Letter from Conrad V. Meyer (Dec. 9, 2010),...
To continue reading
Request your trial
- Coates v. Edgewood Mgmt. Corp., Civil Action No. 17-0191 (ABJ).
-
Luxama v. McHugh
...their duties correctly, lawfully and in good faith. [I]t is also presumed that governmental records are accurate." Jenkins v. Speer, 258 F. Supp. 3d 115, 124 (D.D.C. 2017) (internal quotation marks and citations omitted). C. Analysis In the complaint, plaintiff makes a general statement tha......