Strang v. Marsh, Civ. A. No. 83-0409 P.

CourtU.S. District Court — District of Rhode Island
Writing for the CourtPETTINE, Senior
Citation602 F. Supp. 1565
Docket NumberCiv. A. No. 83-0409 P.
Decision Date21 February 1985
PartiesRonald S. STRANG, et al. v. John O. MARSH, Jr., et al.

602 F. Supp. 1565

Ronald S. STRANG, et al.
v.
John O. MARSH, Jr., et al.

Civ. A. No. 83-0409 P.

United States District Court, D. Rhode Island.

February 21, 1985.


602 F. Supp. 1566
COPYRIGHT MATERIAL OMITTED
602 F. Supp. 1567
COPYRIGHT MATERIAL OMITTED
602 F. Supp. 1568
Bruce Hodge, Gary Powers, of R.I. Legal Services, Providence, R.I., Barton F. Stichman, David F. Addestone, Nat. Veterans Legal Services Project, Inc., Washington, D.C., for plaintiffs

Everett C. Sammartino, Asst. U.S. Atty. for R.I., Providence, R.I., for defendants; Major Craig P. Niederpruem, Thomas R. Folk, Dept. of Army, Washington, D.C., of counsel.

OPINION AND ORDER

PETTINE, Senior District Judge.

This is an action challenging the review procedures employed by Discharge Review Boards ("DRBs") and Boards for the Correction of Military Records ("BCMRs"), administrative bodies created by Congress to review and determine whether to recharacterize less than fully honorable discharges given to military personnel. In particular, plaintiffs seek declaratory and injunctive relief requiring the defendant boards expressly to follow, distinguish or overrule prior board decisions when an individual seeking upgrade cites a prior decision in his application. They argue that the Boards' asserted failure to respond adequately to citations of prior decisions violates the Boards' enabling statutes, 10 U.S.C. §§ 1552 and 1553; the Freedom of Information Act, 5 U.S.C. § 552; the Administrative Procedure Act, 5 U.S.C. §§ 555, 557(c) and 706; and the Due Process Clause of the Fifth Amendment to the Constitution. The matter is currently before the Court on cross-motions for summary judgment and defendants' motion in the alternative to dismiss the complaint for failure to state a claim upon which relief may be granted. Jurisdiction is properly invoked pursuant to 28 U.S.C. § 1331.1

I. BACKGROUND

A. Parties

Plaintiffs in this action are seven individuals and two veterans' advocacy organizations. The seven individuals — former members of the Army and Navy2 — were all discharged prior to the expiration of their term and given a less than fully honorable discharge. Each of the seven has unsuccessfully sought recharacterization of his discharge before a DRB and/or BCMR.3 The organizational plaintiffs, Vietnam Era Veterans' Association ("VEVA") and Vietnam Veterans of American ("VVA") are non-profit groups who advance the interests of veterans and whose activities include representation of veterans before the discharge boards. Defendants are the Secretary of Defense and the Secretaries of the Army, Navy and Air

602 F. Supp. 1569
Force, respectively. These officials oversee the separation of military personnel from the armed forces and administer the BCMR's and DRB's, pursuant to 10 U.S.C. §§ 1552 and 1553

None of the plaintiffs seeks, through this action, judicial review of his adverse Board decision. Plaintiffs' Mem. In Supp. of Summ. Jmt., at 50. Rather, the plaintiffs challenge only the decisionmaking procedures employed by the Boards, and seek as relief: (1) a declaration that the Boards' failure to follow, distinguish or overrule prior decisions violates federal statutory and constitutional law; (2) an injunction prohibiting the defendants from pursuing this practice in the future; (3) an injunction ordering defendants to review past applications where Board decisions were cited and to prepare responses to those citations; and (4) an injunction ordering defendants to amend their regulations to include new procedures for responding to citations of past cases.

B. The Discharge Review Process

Upon separation from the armed services, an individual may receive one of five discharge characterizations: honorable; general or under honorable conditions; undesirable; bad conduct; and dishonorable. The first three types are awarded administratively, when the individual is terminated from the service; the latter two may be awarded only after a court-martial conviction. Unless an individual holds an honorable or general discharge, he may not receive veterans' benefits. See generally National Association of Concerned Veterans v. Sec. of Defense, 487 F.Supp. 192 (D.D.C.1979); Lunding, Judicial Review of Military Administrative Discharges, 83 Yale Law Journal 33 (1973).

Prior to World War II, the only way a veteran could seek recharacterization of a discharge was to secure congressional passage of private relief legislation. Seeking to relieve itself of this burden, Congress in 1944 mandated that each military service establish a Discharge Review Board. Section 301, Serviceman's Readjustment Act of 1944, P.L. 346, 58 Stat. 284 (1944), codified at 10 U.S.C. § 1553. In 1946, Congress additionally authorized the Secretary of each service to create a Board for the Correction of Military Records. Section 207, Legislative Reorganization Act of 1946, 80 Stat. 812, 837, amended by Act of Oct. 25, 1951, 65 Stat. 655, codified at 10 U.S.C. § 1552. See generally J. Glosser and K. Rosenberg, Military Correction Boards: Administrative Process and Review by the United States Court of Claims, 23 American U.L.Rev. 391 (1973).

The DRBs, each comprised of five military officers, are empowered to review any discharge, other than one issued by sentence of a general court-martial, and to reclassify a discharge, subject to review by the appropriate Secretary.4 10 U.S.C.

602 F. Supp. 1570
§ 1553(a)-(b). Any veteran seeking DRB review is entitled to a hearing. § 1553(c)

The BCMRs are comprised of civilian personnel and accorded greater power by Congress.5 In addition to reclassifying discharges, a BCMR may actually change or correct the veteran's military records where "necessary to correct an error or remove an injustice." 10 U.S.C. § 1552(a). A BCMR need not grant a hearing, however, Kalista v. Sec. of the Navy, 560 F.Supp. 608, 616 (D.Col.1983), and while in limited circumstances it will review a case not yet heard by a DRB, it typically hears cases where a DRB has already denied full relief, see Lunding, supra at 41-42.

In 1977, Congress enacted legislation mandating that veterans' benefits be paid pursuant to a DRB-upgraded discharge only after a "case-by-case review" by the DRB under "published uniform standards." 38 U.S.C. § 3103(e)(1).6 Thereafter, the

602 F. Supp. 1571
Department of Defense promulgated standards setting forth the factors to be considered in determining whether to upgrade a discharge. See 32 C.F.R. § 70.3, et seq. Under these standards, a discharge may be characterized as improper, see § 70.9(b), or inequitable, see § 70.9(c).7

Principally at issue in this case is the defendants' policy with respect to the citation by applicants of past "equitable" decisions. The regulations state that when an applicant cites a prior equitable decision granting an upgrade as binding on the Board:

the decisional document shall note that the DRB is not bound by its discretionary decisions in prior cases under the equitable standards. However, the principles cited by the applicant, and the description of the relationship of the principles to the applicant's case, shall be considered under the equity standards and addressed ...
32 C.F.R. at § 70.8(e)(iii)(D).

The regulations, thus, compel the Boards to respond to the substantive "issue" raised by citation of a prior case, but do not compel the Boards to cite differing facts or circumstances if a different result is reached. The regulations elsewhere make explicit the Department's position regarding prior equitable decisions:

The primary function of the DRB is to exercise its discretion on issues of equity by reviewing the individual merits of each application on a case-by-case basis. Prior decisions in which the DRB exercises its discretion to change a discharge based on issues of equity (including the factors cited in such decisions or the weight given to factors in such decisions) do not bind the DRB in its review of subsequent cases because no two cases present the same issue of equity.

32 C.F.R. at § 70.9(b)(3)

Alone among the defendants named in this suit, the Army, however, has voluntarily promulgated its own DRB regulations obligating it to follow cited equitable cases or to distinguish them. 32 C.F.R. § 581.2, Appendix B, § 4(k) (1983).8 Accordingly, this regulation separates the official policy of the Army from that of the Navy or Air Force, with respect to the central issue of this case.

The Department of Defense regulations governing the procedures to be employed by Boards, including those governing the treatment of cited past decisions, grew out of a prior lawsuit between veterans' groups and the defendants in this action. Urban Law Institute of Antioch College v. Sec. of Defense, Civ. No. 76-0530 (D.D.C.) (hereafter, "Urban Law"), culminated in two stipulations

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of settlement which obliged the Boards to adopt the procedures now set forth at 32 C.F.R. § 70.3, et seq. These procedures include preparing statements of findings and reasons for all DRB and BCMR decisions; making available and indexing prior board decisions; preparing "decisional documents" according to a specific format; and establishing a Joint Service Review Activity ("JSRA") to review complaints concerning failure to comply with the new decision-making procedures. See 4 Mil.L.Rep. 6012-6016 (May-June 1976) (reprinting 1977 stipulation); 44 Fed. Reg. 37771, et seq. (August 26, 1982) (reprinting 1982 stipulation). The parties to that litigation, however, expressly left open the question whether federal statutory or constitutional law requires the Boards to follow, distinguish or remove past equitable decisions
Plaintiffs take the following position: The DRBs, like other federal agencies, are required by fundamental principles of administrative law and due process to adjudicate similarly situated cases in a similar manner. Plaintiffs further take the position that this principle requires that when an applicant cites a prior
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5 practice notes
  • Vietnam Veterans of America v. Secretary of the Navy, Nos. 86-5547
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 29, 1988
    ...to correct an error or remove an injustice," id. Sec. 1552(a)--has been viewed as broader than that of the NDRB. See Strang v. Marsh, 602 F.Supp. 1565, 1570 (D.R.I.1985). Unlike the NDRB, it is not required to grant a hearing, see id. at 1570 (citing Kalista v. Secretary of the Navy, 560 F.......
  • Ortiz v. Secretary of Defense, No. 94-5026
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 7, 1994
    ...and the Corrections Board. However, even the indecisive language in Vietnam Veterans and the case upon which it relies, Strang v. Marsh, 602 F.Supp. 1565 (D.R.I.1985), imply only that exhaustion is not required when the Review Board lacks the power to provide the relief sought. See Hodges, ......
  • Mainelli v. United States, Civ. A. No. 85-0293 P.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • June 6, 1985
    ...agency has developed the relevant facts, applied its expertise and exercised the discretion entrusted to it by law,'" Strang v. Marsh, 602 F.Supp. 1565, 1575 (D.R.I.1985) (quoting Elton Orchards v. Brennan, 508 F.2d 493, 497 (1st In the present case, the plaintiffs' claim of res judicata or......
  • Lowry v. United States, No. 20-682C
    • United States
    • Court of Federal Claims
    • April 8, 2021
    ...id. § 1552(a)—has been viewed as broader than that of the NDRB." Viet. Veterans of Am, 843 F.2d at 531 (citing Strange v. Marsh, 602 F. Supp. 1565, 1570 (D.R.I. 1985)). Mr. Lowry pursued appeals before both the NDRB and the BCNR. Each was unsuccessful. A. Naval Discharge Review Board Procee......
  • Request a trial to view additional results
5 cases
  • Vietnam Veterans of America v. Secretary of the Navy, Nos. 86-5547
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 29, 1988
    ...to correct an error or remove an injustice," id. Sec. 1552(a)--has been viewed as broader than that of the NDRB. See Strang v. Marsh, 602 F.Supp. 1565, 1570 (D.R.I.1985). Unlike the NDRB, it is not required to grant a hearing, see id. at 1570 (citing Kalista v. Secretary of the Navy, 560 F.......
  • Ortiz v. Secretary of Defense, No. 94-5026
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 7, 1994
    ...and the Corrections Board. However, even the indecisive language in Vietnam Veterans and the case upon which it relies, Strang v. Marsh, 602 F.Supp. 1565 (D.R.I.1985), imply only that exhaustion is not required when the Review Board lacks the power to provide the relief sought. See Hodges, ......
  • Mainelli v. United States, Civ. A. No. 85-0293 P.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • June 6, 1985
    ...agency has developed the relevant facts, applied its expertise and exercised the discretion entrusted to it by law,'" Strang v. Marsh, 602 F.Supp. 1565, 1575 (D.R.I.1985) (quoting Elton Orchards v. Brennan, 508 F.2d 493, 497 (1st In the present case, the plaintiffs' claim of res judicata or......
  • Lowry v. United States, No. 20-682C
    • United States
    • Court of Federal Claims
    • April 8, 2021
    ...id. § 1552(a)—has been viewed as broader than that of the NDRB." Viet. Veterans of Am, 843 F.2d at 531 (citing Strange v. Marsh, 602 F. Supp. 1565, 1570 (D.R.I. 1985)). Mr. Lowry pursued appeals before both the NDRB and the BCNR. Each was unsuccessful. A. Naval Discharge Review Board Procee......
  • Request a trial to view additional results

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