Ortiz v. Secretary of Defense, Civ. A. No. 92-2764.

• Decision Date: 14 December 1993
• Docket Number: Civ. A. No. 92-2764.
• Citation: 842 F. Supp. 7
• Parties: Gilbert ORTIZ, Jr., et al., Plaintiffs, v. SECRETARY OF DEFENSE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

842 F. Supp. 7

Gilbert ORTIZ, Jr., et al., Plaintiffs, v. SECRETARY OF DEFENSE, et al., Defendants.

Civ. A. No. 92-2764.

United States District Court, District of Columbia.

December 14, 1993.

Gershon Michael Ratner, National Veterans Legal Services Project, Kenneth J. Nunnenkamp, Michael L. Leetzow, Finnegan, Henderson, Farabow, Garrett & Dunner, Washington, DC, for plaintiffs.

Michael Ambrosino, U.S. Attys. Office, Washington, DC, for defendants.

MEMORANDUM OPINION AND ORDER

SPORKIN, District Judge.

Plaintiffs Gilbert Ortiz and Nollie Plowman are two former soldiers who have brought this action to challenge the decision of the Army Board for Correction of Military Records ("ABCMR") denying their applications for upgrade of their discharges from "other than honorable" to "honorable". The ABCMR denied plaintiffs' applications because they were not filed within the time specified by statute and because plaintiffs failed to demonstrate that it was in the interest of justice to excuse their failure to file timely applications. This action is brought under the Administrative Procedure Act and the United States Constitution.

The complaint contains three counts. Count I challenges the denial of the discharge upgrade for lack of timeliness as arbitrary, capricious and contrary to law because Plaintiffs filed within the statutory limitations period. Count II alleges that even if the statute of limitations were not met, the decision not to waive the statute of limitations in "the interest of justice" was arbitrary and capricious because the ABCMR failed to evaluate and justify its decisions with regard to the merits of plaintiff's claims. Count III challenges the denial of upgrades on equal protection grounds, arguing that Army veterans are treated differently than Navy and Air Force veterans by their respective BCMRs.

The Court has before it defendant's Motion to Dismiss or in the Alternative for Summary Judgment, and plaintiffs' Cross Motion for Summary Judgment.

I. Facts

The following facts are undisputed:

Gilbert Ortiz

Plaintiff Gilbert Ortiz entered the United States Army on November 7, 1966. During the time Ortiz was in the Army, he was repeatedly absent without leave ("AWOL") and accrued 913 days lost time due to AWOL and confinement. He was convicted twice by summary court-martial and once by special court-martial for AWOL. These proceedings resulted in reductions in grade and hard labor and a period of confinement. Ortiz' commander recommended that he be administratively removed from the service for reasons of unfitness. Informed of the serious consequences that might result from his contemplated separation from the service, Ortiz waived consideration of his case by a board of officers. He also waived representation by appointed counsel and the right to submit statements on his own behalf. On March 27, 1970, Ortiz was discharged from the Army with a discharge under other than honorable conditions. Ortiz was credited with 10 months, 21 days active service.

On August 24, 1984, within 15 years of his date of discharge, Ortiz applied to the Army Discharge Review Board ("ADRB") for an upgrade of his discharge. Mr. Ortiz argued that his post-discharge conduct combined with his immaturity at the time of his service warranted an upgrade of his discharge classification to general/under honorable conditions. His application to the ADRB was denied on June 18, 1985. Upon denial by the ADRB, Ortiz was informed that he had the right to apply for consideration with the ABCMR.

On July 3, 1985 Ortiz applied to the ABCMR for an upgrade of his discharge. Mr. Ortiz listed the following as reasons why the Board should find it in the interest of justice to consider his untimely filed application:

I have maintained gainful employment and the erradic sic behavior demonstrated during the Army no longer exists as my personal problems have been resolved.

Administrative Record I at 16. The ABCMR denied Ortiz' application on December 10, 1986. The Board's justification for denying the Mr. Ortiz' application was as follows:

The alleged error or injustice was, or with reasonable diligence should have been, discovered on 27 March 1970. The time for the applicant to file a request for correction of any error or injustice expired on 27 March 1973. 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.

Administrative Record I at 2.

Nollie Plowman

Plaintiff Nollie Plowman entered into active service with the United States Army on September 13, 1974. After completing his training, Plowman received non-judicial punishment for failing to report to his place of duty. Despite this initial infraction, Plowman was subsequently promoted, achieving the rank of SP-4 by May, 1976. On June 4, 1976, Plowman was given non-judicial punishment for failing to appear at the appointed time on guard duty and for being incapacitated for duty resulting from a previous "indulgence" of alcohol. Plowman was fined and reduced in grade from SP-4 to Private First Class. On July 30, 1976, Mr. Plowman received non-judicial punishment for being AWOL from July 9 through July 14. Mr. Plowman was placed under restriction, fined, given extra duty and reduced from Private First Class to Private E-2. Plowman again received non-judicial punishment on September 16, 1976 for being AWOL from September 6 through September 8. This infraction caused Mr. Plowman again to be placed on restriction, to be given extra duty and to be reduced in grade to Private E-1.

Beginning in September 1976, Plowman was treated for drug and alcohol abuse. This treatment was apparently ineffective, as Plowman continued to go AWOL. Court-martial charges were brought against him. Plowman elected to submit a resignation in lieu of court-martial. In his resignation request, Plowman admitted that he had committed the charged offenses and was aware of the consequences of his request for resignation. He was discharged on July 21, 1977, with a classification of "Other than Honorable."

On December 21, 1983, Mr. Plowman applied to the ADRB to change the status of his discharge.¹ He referred to both a mental condition and his drug and alcohol abuse as reasons for his misconduct. On October 12, 1984, the ADRB declined to upgrade his discharge.

On January 28, 1987, nearly nine years after his discharge from active duty, but less than three years after the ADRB denied his request for a discharge upgrade, Plowman filed an application to the ABCMR for an upgrade of his discharge. Listing the date of discovery of the alleged injustice as 1986, Plowman stated that the Board should find the consideration of the application in the interest of justice because, "mental problems was keeped sic in service a year after being completly sic busted." Administrative Record II at 62.

The ABCMR decided not to upgrade the status of Plowman's discharge status on August 17, 1988. In a decision similar to its decision with regard to Mr. Ortiz, the Board concluded that Mr. Plowman had not applied to it within the three year limitations period and that Plowman did not present sufficient justification to find it in the interest of justice to waive the statute of limitations.

Count I

Count I challenges the ABCMR's determination that the plaintiffs did not file their applications within the statutory period. The relevant portion of the statute which governs applications to BCMRs reads as follows: "No correction may be made ... unless the claimant ... files a request for the correction within three years after he discovers the error or injustice." 10 U.S.C. § 1552(b). Plaintiffs argue that the ABCMR's three-year statute of limitations period does not begin to run when the applicant is separated from the service, but instead it begins to run only once administrative remedies, specifically all applications to the ADRB, have been denied. Plaintiffs claim that while their applications for review were filed with the ABCMR more than three years after their discharges, this Court should find that the applications were properly filed because plaintiffs applied to the ABCMR within three years after denial of their claims by the ADRB.

Plaintiffs base their argument on two separate facts. First, under 37 C.F.R. § 581.3(c)(3) (1993) in order to apply to the ABCMR, an applicant need to have "exhausted all effective administrative remedies afforded him by existing law or regulations, and such legal remedies as the Board shall determine are practical and appropriately available to the applicant." Thus, appeal for the correction of a military discharge record normally lies first to the relevant DRB and then to the BCMR. See Hodges v. Callaway, 499 F.2d 417, 420 n. 7 (5th Cir.1974). The second fact on which plaintiffs base Count I is that the ADRB has a fifteen year statute of limitations while the ABCMR has a three-year statute. Compare 10 U.S.C. § 1553(a) (application to Discharge Review Board must be made within 15 years of date of discharge) with 10 U.S.C. § 1552(b) (3-year limit for boards for the correction of military records created under this statute). Plaintiffs assert that because an appeal to the ADRB is considered an administrative prerequisite to an application to the ABCMR, the ADRB's 15-year statute of limitations would be abbreviated by 12 years if an aggrieved party were required to file with the ADRB within three years in order to preserve any subsequent right of application to the ABCMR. Plaintiffs would have this Court find that no "error or injustice" within the meaning of § 1552(b) has occurred until all administrative remedies, including application to the DRB, have been exhausted.

This Court finds that the ABCMR acted neither arbitrarily nor capriciously in interpreting the "discovery of error...