Wronke v. Marsh

• Decision Date: 04 April 1986
• Docket Number: No. 85-2629,85-2629
• Citation: 787 F.2d 1569
• Parties: Kenneth L. WRONKE, Appellee, v. John A. MARSH, as Secretary of the Army, et al., Appellants. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 1569

787 F.2d 1569

Kenneth L. WRONKE, Appellee, v. John A. MARSH, as Secretary of the Army, et al., Appellants.

Appeal No. 85-2629.

United States Court of Appeals Federal Circuit.

April 4, 1986.

J. Steven Beckett, of Reno, O'Byrne & Kepley, Champaign, Ill., argued, for appellee.

John S. Groat, of the Commercial Litigation Branch, Civ. Div., Dept. of Justice, Washington, D.C., argued, for appellants. With him on brief were Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Thomas W. Petersen, Asst. Director. Of counsel were Major Charles W. Beardall and Lt. Col. Joyce E. Peters, of the Office of the Judge Advocate Gen., Dept. of the Army.

Before MARKEY, Chief Judge, and SMITH and NEWMAN, Circuit Judges.

MARKEY, Chief Judge.

Appeal from a judgment of the District Court for the Central District of Illinois, vacating the discharge from the United States Army Reserve (USAR) of Kenneth L. Wronke (Wronke), ordering him reinstated with all rank and privileges to which he would have been entitled had he not been discharged, and awarding him back pay not to exceed $9,999.99. 603 F.Supp. 407 (C.D.Ill.1985). We reverse.

Background

In October 1977, Wronke, then a non-rated commissioned officer (Major) in the USAR, applied to the Federal Aviation Administration (FAA) for a civilian pilot's Certificate. Applying under a regulation that waived a flight test for rated military pilots, he presented an Army Flight Record indicating that he had been a rated Army Aviator since November 1967 and had flown 10 hours with his Reserve unit during the preceding month. He also furnished an order showing that he had been placed on flight status by his Reserve unit. Based on those documents, he was given merely a written test by the FAA and was issued a temporary Airman Certificate.

In May 1978, the FAA requested Wronke's USAR Commander to verify his flying status. After checking Wronke's records, the Commander advised the FAA officials that Wronke had never been a rated Army Aviator.

The FAA issued an emergency revocation of Wronke's Certificate, and Wronke obtained an FAA hearing in September 1978. Wronke testified that he was placed on flight status in 1967 while he was in Vietnam, but never saw the order; that his military records were incomplete; that the 10 hours flown with his Reserve unit were flown partly in his own aircraft. The FAA's Administrative Law Judge concluded that he was not a military rated pilot, and did not qualify for a Certificate based on such qualification. The ALJ permanently revoked his Certificate and placed a one-year ban on his making further application.

Wronke appealed the FAA revocation of his certificate to the National Transportation Safety Board (NTSB), which affirmed the revocation on November 13, 1978. In its opinion, NTSB pointed out:

(a) Wronke had obtained the Certificate on the basis of military piloting record data and therefore without a flight test under Sec. 61.73 of the Federal Aviation Regulations, the regulation governing applications by rated military pilots.

(b) Neither of the two military aircraft he claimed to have flown were in service during the period involved.

(c) Safety in the air and the public interest required affirmation of the revocation.

(d) Though Wronke submitted documents showing his rating in fixed wing aircraft on November 28, 1967 and in rotary wing aircraft on April 16, 1976, and an invalid Special Order confirming his "aviator profile", Wronke is not a military rated pilot.

NTSB modified the one-year ban on re-applying, however, saying:

In the absence of any probative evidence that respondent's application was based on a deliberate intent to mislead the FAA, ¹⁴ we are not persuaded that barring a new application for a full year would serve any meaningful safety purpose. Furthermore, respondent's extensive use of the privileges of an airman certificate would aggravate the effect of a full year's grounding. ¹⁵ We also note that the Administrator's counsel, both during interrogation at the hearing and in his reply brief, has indicated a willingness to shorten the 1 year period of ineligibility. In view of the above circumstances, we believe respondent should be allowed to re-apply for appropriate airman certification, in the standard manner rather than under section 61.73, and we urge the Administrator to consider any such application submitted by respondent following issuance of this order.

On November 5, 1979, Wronke was recommended for discharge from the USAR under Army Regulation (AR) 135-175 for conduct unbecoming an officer, falsification of official military records, and fraudulent preparation of the two documents he had submitted to the FAA.

On January 10, 1981, Wronke, with counsel, appeared before a Board of Officers (Elimination Board) to show cause why he should not be discharged. Wronke testified that he had served in Korea with the Navy as an underwater demolition technician; that after he was commissioned, he served in Vietnam, and was attached to the 184th Recon Airplane Company; that his duty was Veterinarian; that he did fly while attached to the 184th; that he flew during the Tet offensive when they were caught unaware and they needed him; that he flew 230 missions in the OH 13 aircraft; that he never saw orders designating him a pilot; that he did not receive flight pay. Other military personnel testified that a Flight Record (DA Form 759, one of Wronke's fraudulently prepared documents) had not been prepared on Wronke; that he was not a rated military pilot; that it would have been improper to prepare a Flight Record for him; and that Wronke's records do not show that he was ever attached The Board of Officers unanimously found that Wronke had engaged in conduct unbecoming an officer when he: (1) intentionally submitted a false official statement for the purpose of misrepresentation to the FAA; (2) supplied inaccurate information to persons in his organization for use in preparation of orders; (3) failed in his obligation as an officer to recognize and correct official records of his qualifications; (4) adopted records containing misleading and inaccurate information and presented them to a government body for purposes of obtaining a pilot's license on the basis of a non-existent military pilot rating. The board recommended Wronke's general discharge under honorable conditions. Wronke received that discharge, to be effective June 14, 1982.

to the 184th Recon Airplane Company.

On July 2, 1982, Wronke sued in the District Court. That suit was dismissed for failure to exhaust military remedies. Wronke appealed to the Court of Appeals for the Seventh Circuit, which affirmed the dismissal.

While the appeal was pending in the Seventh Circuit, Wronke applied to the Army Board for Correction of Military Records (ABCMR), seeking to vacate his discharge and relying primarily on the NTSB's statement that his "application was more the result of a lack of understanding of pertinent FAA and military standards." In April 1983, the ABCMR found Wronke's conduct unbecoming that of an officer, held that the NTSB's statement was not binding on the Army, and, after reviewing the entire record, refused to vacate Wronke's discharge.

On August 11, 1983, Wronke sued again in the district court, where the parties lodged cross motions for summary judgment.

The District Court's Decision

The district court rested its decision on two foundations. The first was this part of NTSB's statement about the one-year re-application restriction:

In the absence of any probative evidence that respondent's application was based on a deliberate intent to mislead the FAA, ¹⁴ we are not persuaded that barring a new application for a full year would serve any meaningful safety purpose.

The second foundation was the district court's interpretation of paragraph 2-5(a) of AR 135-175:

2-5(a) No officer will be considered for elimination for the reasons in paragraph 2-11 or 2-12 because of conduct that has been the subject of judicial proceedings resulting in an acquittal based on the merits of the case or in an action having the same effect. ²

The district court recognized the Army's interpretation of paragraph 2-5(a):

The defendant alleges that the NTSB proceedings were not judicial proceedings, and they were also not "an action having the same effect" under the provisions of AR 135-175, Para. 2-5(a). Defendants opine that the thrust of the provision is to prevent an elimination action against an officer who has been successful in judicial proceedings whether as the result of an acquittal or of some other action, such as a dismissal at trial on certain motions that have the same effect.

603 F.Supp. at 412. The court also recognized the established rules governing judicial review of the Army's interpretation of its own regulations:

Where the meaning of a regulation is in question, the Army's own interpretation of its regulations must be given controlling weight unless it is plainly erroneous or inconsistent with the regulation. (Citations omitted.) If the applicable regulations are interpreted by the Army in a reasonable manner, any charge of procedural irregularity must fail even though the petitioner may present another reasonable interpretation of the regulations. (Citation omitted.) Thus where a military regulation is susceptible to equally reasonable constructions, a court may not substitute an alternative interpretation for the interpretation of the military service. (Citation omitted.)

Nonetheless, the court went on to say that the Army's interpretation was unreasonable, plainly erroneous, inconsistent with the regulation and untenable. Substituting its own interpretation, the court held that NTSB's statement was binding on the Army:

The court, however, does not find the Army's interpretation of AR 135-175 Para. 2-5(a) to be a reasonable interpretation and the court instead finds that the Army's interpretation is plainly erroneous...