                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


TIM FERGUSON,

                      Plaintiff,
                                                     Civil Action No. 12-961 (BJR)
               v.
                                                     MEMORANDUM OPINION
JOHN M. MCHUGH,
Secretary of the Army,

                      Defendant.



        This case is before the court on Defendant’s Motion to Dismiss and Motions for

Summary Judgment from both parties. Plaintiff Tim Ferguson seeks review of a decision by the

Army Board of Corrections for Military Records (“ABCMR” or “Board”). The Board denied

Ferguson’s application to change his record from a discharge in lieu of court-martial to a medical

retirement. Having reviewed the briefs and the administrative record, the Court grants

Defendant’s motion for summary judgment, for the reasons discussed below.

   I.      Background

   A. Voluntary Discharge in Lieu of Court-Martial

        Army regulations provide that a service member may request discharge in lieu of court-

martial where the service member faces a trial by court-martial in which a punitive discharge can

be adjudged. Army Reg. 635-200, ¶ 10-1. This is known as a “Chapter 10” discharge request.

The regulation prohibits coercion of such requests. Id. ¶ 10-2.

   B. Ferguson’s Hospitalization and Discharge

        Ferguson enlisted in the U.S. Army on July 24, 1978. AR 128. In early 1991 Ferguson’s

commander began an investigation of Ferguson in response to sexual harassment complaints by

                                                 1
Ferguson’s subordinates. AR 615, 727. The investigation uncovered sufficient evidence for

Ferguson to be charged, and Ferguson was relieved of duties. AR 599. Between December 1991

and January 1992, Ferguson was charged with misappropriation of government property, sexual

harassment, and adultery. AR 26; Defendant’s Statement of Undisputed Facts (SUF) ¶ 9.

       On January 14, 1992, Ferguson was voluntarily admitted to the hospital for psychiatric

evaluation. SUF ¶ 14. The admitting attendant described Ferguson’s thought process as “intact,”

and his mental status as “alert.” AR 406. The records indicate that Ferguson remained

cooperative and alert throughout the hospitalization, which lasted until January 17, 1992. AR

377-79.

       The nurse’s notes from January 14, 1992 describe Ferguson as “very angry” on admission

to the hospital, and “paranoid.” AR 376-77. Ferguson admitted to feeling depressed and vaguely

suicidal, though he denied having any current suicidal thoughts. AR 377-78. Ferguson stated:

“My lawyer wants me to take a Chapter 10. I don’t want to take it for something I didn’t do.” AR

377. He further stated that he “will not let 14 yrs of service go in vain.” AR 378.

       Progress notes from Ferguson’s clinical psychologist indicate that the hospital staff spoke

with Ferguson’s attorney on January 15, 1992 and made an appointment for the attorney. AR

395. In a group session, Ferguson “discussed charges he’s facing [and] his innocence.” AR 395.

A January 16, 1992 progress note states that Ferguson “feels he is coming to terms [with] where

he ‘is,’ [and] plans to accept his attorney’s recommendation.” AR 396. Another call was placed

to Ferguson’s attorney that day. Id. The next day, January 17, 1992, hospital staff made the

following progress note:

       “Extensive meeting/discussion with [Ferguson’s] attorney [and Ferguson] at end
       of day; Clearly [Ferguson] stable at this point [and] does not need to be in
       hospital. He understands what he is up against, will take a [Chapter] 10 if he can,
       [and] will come to my office on Tues[day] for a [follow-up] appointment.

                                                 2
       [Ferguson] is not suicidal, homicidal or in any other way a danger.”

AR 397.

       Ferguson was discharged from the hospital on January 17, 1992, having been diagnosed

with “Adjustment Disorder with Anxiety and Depression,” and “Character Disorder.” AR 372.

His physician described him as having “much legal difficulties but ‘conventionally’ intact.” AR

398. At a follow-up appointment, Ferguson maintained that his goal was “to have my situation

justified and stay in the army.” AR 382. According to a clinical record prepared on January 22,

1992, Ferguson “constantly talks about the need to return to his job as soon as possible.” Id.

       On January 29, 1992, Ferguson was readmitted to the hospital for suicidal ideations. AR

383, 385. Once again, Ferguson “emphatically denie[d]” the sexual harassment charges. AR 383.

On January 30, 1992, Ferguson’s attending psychologist, Dr. David Ruhland, typed the

following note into a progress report:

       [Ferguson’s] councilor (lawyer), Mr. Cohen, met with me and we discussed
       [Ferguson] signing documents to have [him] released from the US Army. I
       advised councilor that at this time it was not advisable because [Ferguson] is not
       competent enough to sign any forms or documents. In fact, [Ferguson] is very
       stressed out and very depressed. Councilor assured me that he wouldn’t bring up
       any subject about any charges or documents. Councilor and [Ferguson] met in
       visitors room along with a volunteer of the H600 ward. After Mr. Cohen left,
       volunteer informed me that councilor had [Ferguson] sign some documents. I then
       called [Ferguson’s] CO and informed him of this. CO replyed [sic] “I’ll look into
       this first hand.” I talked with [Ferguson] after the CO and [Ferguson] had no
       response to any question I asked.

AR. 401. Ferguson was released on January 30, 1992, with diagnoses of adjustment

disorder and character disorder. AR 73, 390.

       Ferguson requested a discharge in lieu of court-martial either during his January

29-30, 1992 hospitalization or shortly after. AR 74-75. The undated request letter signed

by Ferguson contained an affirmation that he was making the request “of [his] own free



                                                 3
will,” not subject “to any coercion whatsoever by any person.” AR 74. In the letter,

Ferguson admitted guilt to the charge of adultery. Id. The discharge was approved on

February 4, 1992, and Ferguson received an “other than honorable” discharge on

February 11, 1992. AR 525, 535.

    C. Ferguson’s Pre-2008 Appeals

        On April 21, 1998, Ferguson applied to the Army Discharge Review Board

(ADRB) seeking an upgrade to “honorable” discharge, on the grounds that he was

innocent of the charges and that his state of mind prevented him from knowingly signing

the Chapter 10 request for discharge in lieu of court-martial. AR 467-68.

        On September 18, 1998, the ADRB upgraded the discharge to a “general”

discharge. AR 218. The ADRB determined that, in light of Ferguson’s service record,

“the quality of [Ferguson’s] service did not warrant” an “other than honorable

conditions” discharge. AR 216. However, the ADRB did not alter the reason for the

discharge, and concluded that “after consulting with defense counsel, [Ferguson]

voluntarily, and in writing, requested separation from the Army in lieu of trial by court-

martial.” Id.

        Ferguson also filed an application with the ABCMR to revoke his discharge. AR

231. As grounds for the correction, Ferguson stated that he was “bewildered and

confused” at the time of the discharge, and signed whatever documents were put before

him. Id. The ABCMR denied the application on May 5, 1999. AR 188-91. Reviewing

Ferguson’s military record and the relevant documents, the Board concluded that

Ferguson’s Chapter 10 request “was administratively correct and in conformance with

applicable regulations,” and that Ferguson had submitted “no evidence to show he was



                                                 4
coerced into requesting discharge or that he was not in his right mind when he did so.”

AR 190.

       On September 1, 1999, Ferguson applied for reconsideration of the ABCMR’s

May 1999 decision. AR 160. In support of his contention that he lacked the mental

capacity to sign the Chapter 10 discharge request, Ferguson submitted medical records

from his hospitalization. Id. The ABCMR denied Ferguson’s application for

reconsideration on May 17, 2000. AR 159. The Board acknowledged Dr. Ruhland’s

January 30, 1992 letter, but determined that “there is insufficient evidence to conclude

that [Ferguson] was not mentally competent to sign whatever he signed on 30 January

1992 or that he was incapable of making an informed decision whenever he signed his

request for discharge.” AR 158. The ABCMR reviewed the circumstances of the visit by

Ferguson’s lawyer on January 30, 1992, and found it “improbable” that “a mental health

professional would have allowed any meeting to occur if the applicant was not actually

competent.” Id. The Board also deemed it “unlikely that such a professional would have

emphasized how bad off such an incompetent patient was by writing ‘In fact PT is very

stressed out.’” Id. The Board also noted that Ferguson was released following his

attorney’s visit, despite refusing to answer Dr. Ruhland’s questions. Id. Finally, the Board

highlighted a progress note from January 17, 1992, illustrating that Ferguson “had, even

that early, already made a decision to request discharge for the good of the service to

avoid trial by court-martial.” Id.

   D. Ferguson’s 2008 Appeal and Request for Reconsideration

       On July 8, 2008, Ferguson again applied to the ABCMR, requesting that his




                                                 5
discharge be changed to a medical retirement. 1 AR 127, 141. Along with the application,

Ferguson submitted a certificate reflecting the upgrade to “general” discharge, his

medical records, a 2006 disability rating from the Department of Veterans Affairs (VA),

and a 2006 letter from the VA. AR 129-30. The medical records reflected that, since

1999, Ferguson had been treated for bipolar disorder with psychotic features. AR 129.

The VA letter contained a notice to Ferguson that he had been deemed incompetent to

handle his own financial affairs. AR 130.

        On December 3, 2008 the Board again denied Ferguson’s application. AR 131. In

its decision, the Board acknowledged that Ferguson had been diagnosed with bipolar

disorder and treated for that disorder since at least 1999. Id. But, the Board explained,

Ferguson’s discharge occurred in 1992, at which time he had only been diagnosed with

adjustment disorder, depression, and personality disorder. Id. There was no evidence to

show that Ferguson could not perform his military duties during his term of service. Id. 2

The Board again acknowledged Dr. Ruhland’s January 30, 1992 progress note, in which

Dr. Ruhland stated that Ferguson was not competent to sign any forms or documents at

that time, but the Board still found “no other evidence of record (e.g., what tests were

performed) to show that [Ferguson] was mentally incompetent or to show that he could

not distinguish right from wrong.” AR 130-31. The Board also noted that Ferguson’s

treating psychologist could have initiated a formal evaluation of Ferguson’s mental

status, but apparently did not feel so strongly about Ferguson’s mental incompetency to

do so. AR 131.

1
  Converting his discharge to a medical retirement would require a showing that Ferguson was medically unfit at the
time of discharge.
2
  Ferguson was not on active duty at the time of his hospitalization, because his commanding officer had relieved
him for cause in May 1991. AR 599. The cause was not medical in nature, but rather the “various acts of indecent
language and assault against female soldiers who worked for [Ferguson] at the dining facility.” Id.

                                                         6
       The Board relied upon an advisory opinion from Gilbert Teague, a medical

advisor with the Army Review Boards Agency. AR 133. Teague reviewed Ferguson’s

medical records, and concluded that Ferguson was not diagnosed with bipolar disorder

until after he had been out of the Army for several years. Id. Teague also determined that

Dr. Ruhland’s January 30, 1992 note did not establish that Ferguson had been deemed

mentally incompetent during his hospitalization or prior to discharge. Id. Teague

observed that Dr. Ruhland’s “language is such that he implies that his patient is too

distraught” to sign papers, not that Ferguson was mentally incompetent. Id. Finally,

Teague noted Dr. Ruhland’s use of the phrase “not advisable” with respect to

communicating with Ferguson, and Dr. Ruhland’s description of Ferguson as “stressed

out and very depressed.” Id. According to Teague, these statements were inconsistent

with statements that a doctor would make about a mentally incompetent patient. Id. As a

result, Teague found the pre-discharge medical records insufficient to establish that

Ferguson was medically unfit at the time of discharge. Id.

       Ferguson immediately applied for reconsideration of the December 3, 2008

decision. The Board returned the request without action on May 13, 2009, because

Ferguson failed to provide any new evidence or argument with the request. AR 92.

       On December 16, 2009, Ferguson submitted another request for reconsideration

of the December 3, 2008 decision. AR 19. Ferguson asked the ABCMR to set aside his

1992 discharge and award him honorable disability retirement with back pay for bipolar

disorder. AR 24. In the alternative, he requested that the Board set aside his discharge,

place him on disability with a 70 percent rating, and award him back pay. Id. If the Board

declined to place Ferguson on the disability list, Ferguson requested that the Board set



                                                 7
aside the discharge, grant back pay, and grant early retirement under the Temporary Early

Retirement Authority (TERA), or grant him benefits under the Special Separation Benefit

Program (SSB). Finally, in the event that the Board declined to grant any of those

remedies, Ferguson requested back pay to the expiration of his time in service (ETS) and

alteration of the narrative reason for his discharge to “expiration of time in service.” Id.

       In support of his application, Ferguson submitted a new medical report from a

psychiatrist, and statements from a former supervisor and a former coworker. AR 6-7.

Ferguson offered the psychiatrist’s report to support his contention that he lacked

competency when he signed the request for discharge in 1992, and to establish the

existence of his bipolar condition as early as 1993. AR 23.

       The Board considered Ferguson’s application for reconsideration on September

28, 2010, and denied it on October 1, 2010. AR 1. After reviewing the facts established in

the previous decisions, the Board turned to Ferguson’s new evidence. AR 14. The Board

observed that, according to the new psychiatrist’s report, Ferguson was anxious,

depressed and suicidal in 1992, “but it was not yet clear that he was disabled.” Id. He had

been “fully functional” until he was hospitalized. Id. It was not until later that Ferguson’s

condition “progressed to the bipolar diagnosis.” Id.

       Even considering the psychiatrist’s report, the Board found that “the evidence

does not indicate [Ferguson] was unfit at the time of his separation in 1992 or had any

disabling condition which would have warranted referral for disability processing.” AR

15. The statements from Ferguson’s coworkers illustrated Ferguson’s “irrational behavior

and personal problems with other employees” during the relevant period, but the Board

deemed these statements “insufficient as a basis on which to grant the relief requested.”



                                                  8
AR 15-16.

        The Board emphasized that although the ADRB upgraded Ferguson’s discharge in

1998 “based on his overall military service,” this “does not have any impact on

[Ferguson’s] request for a medical retirement.” AR 14. Nor did the VA’s subsequent

disability rating have a retroactive effect. Because the VA “is not required to determine

fitness for duty at the time of separation,” and “[t]he Army must find a member

physically unfit before he can be medically retired or separated,” the VA’s 2006

disability rating for bipolar disorder had limited relevance to Ferguson’s request. Id. For

these reasons, the Board denied Ferguson’s application for medical retirement. AR 15. 3

        Ferguson had also repeated his claim that his mental state prevented him from

voluntarily signing the Chapter 10 discharge request. The Board’s findings and

conclusions on this question dovetailed with the Board’s analysis of Ferguson’s fitness

for duty as of 1992. To wit, the Board noted that Ferguson “was described as not being

suicidal or homicidal, somewhat depressed, and his thought process was intact.” AR 14.

The Board concluded, “in the absence of evidence to the contrary,” that Ferguson’s

discharge was administratively correct and in conformance with applicable regulations.

AR 15. It determined that Ferguson’s service record “does not contain any indication that

the request for discharge was made under coercion or duress.” Id.

    E. The Present Suit

        Ferguson brought suit in 2012, seeking judicial review of the Board’s October 1,

2010 decision. He argues in his motion for summary judgment that the ABCMR’s

3
  The Board denied Ferguson’s request for TERA relief on the ground that he had not served a sufficient number of
years, and denied SSB relief because Ferguson never applied for a voluntary discharge under the SSB program, as
required. AR 14. The Board also denied Ferguson’s request for back pay up until his ETS date, and Ferguson’s
request for a change in the narrative reason of his discharge to “ETS,” on the ground that Ferguson was separated
prior to fulfilling his service obligation – i.e. he did not complete his term of service. Id.

                                                        9
decision was an erroneous application of law and facts. Defendant moves to dismiss

under Fed. R. Civ. P. 12(b)(1) on the ground that Ferguson’s claim is barred by the

APA’s six-year statute of limitations. In the alternative, Defendant moves for summary

judgment on the ground that the ABCMR’s decision was rational and is entitled to

deference.

   II.       Legal Standard

   A. Rule 12(b)(1)

         When a party files a motion to dismiss for lack of subject-matter jurisdiction

under Rule 12(b)(1), “the plaintiff[ ] bear[s] the burden of proving by a preponderance of

the evidence that the Court has subject matter jurisdiction.” Biton v. Palestinian Interim

Self-Gov’t Auth., 310 F. Supp. 2d 172, 176 (D.D.C. 2004). The court must accept as true

all factual allegations in the complaint, and “may consider such materials outside the

pleadings as it deems appropriate to resolve the question of whether it has jurisdiction to

hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C.

2000) (citing Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992).

   B. Rule 56 Motions in APA Proceedings

         Fed. R. Civ. P. 56 provides for entry of summary judgment if “there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). However, in cases involving review of a final agency action under

the APA, the normal summary judgment standard does not apply. Sierra Club v.

Mainella, 459 F. Supp. 2d 76, 89-90 (D.D.C. 2006). Instead, “the function of the district

court is to determine whether or not as a matter of law the evidence in the administrative

record permitted the agency to make the decision it did.” Id. at 90. “Summary judgment



                                                 10
thus serves as the mechanism for deciding, as a matter of law, whether the agency action

is supported by the administrative record and otherwise consistent with the APA standard

of review.” Id.

       Federal courts review final decisions of military corrections boards, including the

ABCMR, under the APA standard. See Musengo v. White, 286 F.3d 535, 538 (D.C. Cir.

2002). A reviewing court shall “hold unlawful and set aside agency action, findings, and

conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.S.C. § 706(2)(A). An agency is required to “examine the

relevant data and articulate a satisfactory explanation for its action including a rational

connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n v.

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). “The scope of review under the

‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment

for that of the agency.” Id.

   C. Review of ABCMR Decisions

       “The Secretary of a military department may correct any military record of the

Secretary’s department when the Secretary considers it necessary to correct an error or

remove an injustice.” 10 U.S.C. § 1552(a)(1). Courts review such decisions under an

“unusually deferential application of the ‘arbitrary and capricious’ standard of the APA.”

Musengo, 286 F.3d at 538 (citing Kreis v. Sec'y of Air Force, 866 F.2d 1508, 1514 (D.C.

Cir. 1989)). “While the broad grant of discretion implicated here does not entirely

foreclose review of the Secretary’s action, the way in which the statute frames the issue

for review does substantially restrict the authority of the reviewing court to upset the

Secretary’s determination.” Kreis, 866 F.2d at 1514. The statute authorizes the Secretary



                                                 11
to correct records “when the Secretary considers it necessary to correct an error or

remove an injustice.” 10 U.S.C. § 1552(a)(1) (emphasis added). “It is simply more

difficult to say that the Secretary has acted arbitrarily if he is authorized to act ‘when he

considers it necessary to correct an error or remove an injustice’…than if he is required

to act whenever a court determines that certain objective conditions are met, i.e., that

there has been an error or injustice.” Kreis, 866 F.2d at 1514.

          The substantial deference afforded military board decisions “is calculated to

ensure that the courts do not become a forum for appeals by every soldier dissatisfied

with his or her ratings,” which would have the potential to “destabilize military command

and take the judiciary far afield of its areas of competence.” Cone v. Caldera, 223 F.3d

789, 793 (D.C. Cir. 2000).

          The district court is not to function as a “super correction board.” Charette v.

Walker, 996 F. Supp. 43, 50 (D.D.C. 1998). A decision by the ABCMR is not arbitrary

and capricious if it “minimally contains a rational connection between the facts found and

the choice made.” Frizelle v. Slater, 111 F.3d 172, 176 (D.C. Cir. 1997). The standard of

review “does not require a reweighing of the evidence, ‘but a determination of whether

the conclusion being reviewed is supported by substantial evidence.’” Walker v. Shannon,

848 F. Supp. 250, 255 (D.D.C. 1994) (quoting Heisig v. United States, 719 F.2d 1153,

1157 (Fed. Cir. 1983) (emphasis in original)).

   III.      Analysis

          In essence, Ferguson makes two arguments: (1) that his mental problems, which

ultimately developed into bipolar disorder, made him unfit for duty as of January 1992, and thus

he was entitled to medical retirement; and (2) that those same mental problems, as evidenced by



                                                   12
medical records from his periods of hospitalization, prevented him from voluntarily signing the

Chapter 10 discharge request. 4 Neither argument prevails, because the Board applied the correct

standard of law and based its decision on substantial evidence in Ferguson’s medical record.

    A. The Board Rationally Determined that Ferguson Was Not Entitled to Medical
       Retirement

        The new evidence Ferguson presented with his July 8, 2008 application for record

correction was related only to Ferguson’s post-discharge medical history. It consisted of a

2006 VA disability rating and a 2006 VA letter, both of which concerned Ferguson’s

post-discharge bipolar diagnosis. AR 129-30. The Board discounted this evidence,

properly concluding that Ferguson’s entitlement to a medical retirement depended on his

condition at the time of discharge, not his subsequent diagnoses. AR 130-31. At the time

of discharge, January 1992, Ferguson had been diagnosed with depression and anxiety

associated with an adjustment disorder, as well as a personality disorder. AR 130. But

there was little or no evidence that he was unfit to perform his duties because of his

mental condition. Id.

        The Board expressly considered Dr. Ruhland’s January 30, 1992 statements

describing Ferguson as stressed out, depressed, and not competent to sign any documents.

AR 130-31. According to the Board, this was insufficient on its own to establish that

Ferguson was medically incompetent or unfit for service, and there was “no other

evidence of record” to support Ferguson’s claim. AR 131. In reaching these conclusions,

the Board sought an advisory opinion from Teague, who reviewed Ferguson’s records,

4
  Ferguson does not address in his briefs the other claims he made in his December 16, 2009 application for
reconsideration – including claims under TERA, SSB, and his request that the Board change the reason for his
discharge to “ETS.” Nor are these matters addressed in the Complaint. Therefore, the Court assumes that he is not
seeking review of the Board’s decision on those questions, or that he has conceded that the Board met the APA
standard as to those issues.


                                                        13
including Dr. Ruhland’s note. AR 133. After parsing Dr. Ruhland’s note, in connection

with Ferguson’s medical records, Teague concluded that “there is no suggestion in the

record that [Ferguson] was medically unfit.” Id.

       The medical records support the conclusions reached by Teague and the Board.

They show that during his hospitalizations Ferguson was alert and cooperative (AR 377-

79, 406), with an “intact” thought process (AR 398, 406), that he had experienced

suicidal thoughts but denied having them at the time he was questioned by hospital staff

(AR 377-78), and that he understood both the charges he was facing and his ability to

request a discharge under Chapter 10 (AR 377-78, 383, 395-97).

       The evidence Ferguson submitted with his December 16, 2009 application for

reconsideration – a psychiatrist’s report and statements from two coworkers – was more

relevant to the time period at issue, but it did not change or overcome the Board’s

conclusion with respect to Ferguson’s fitness for duty. The Board considered the

psychiatrist’s report, noting that the psychiatrist himself determined that, as of 1992, it

was not yet clear that Ferguson was disabled, and Ferguson’s condition only later

progressed to a bipolar diagnosis. AR 14. The Board also considered the statements from

Ferguson’s coworkers, reasonably finding that a coworker’s description of irrational

behavior and interpersonal problems is insufficient basis for a grant of medical

retirement. AR 15-16. Though the Board did not interpret the new evidence as Ferguson

likely hoped it would, the Board’s consideration was rational in light of the other

evidence in the record.

       In sum, the Board’s decision concerning Ferguson’s eligibility for medical

retirement “contains a rational connection between the facts found and the choice made,”



                                                  14
Frizelle, 111 F.3d at 176, and is “supported by substantial evidence.” Walker, 848 F.

Supp. at 255. Particularly in light of the “unusually deferential” APA standard applicable

to ABCMR decisions, Musengo, 286 F.3d at 538, the Court declines to upset the Board’s

decision.

   B. The Board Applied the Correct Standard of Law and Relied on Substantial
      Evidence in Determining that Ferguson’s Chapter 10 Request Was Voluntary

       1. The Board Applied the Correct Standard of Law

       Ferguson argues that the Board applied the wrong legal standard when it required proof

of mental incompetence. Citing Robinson v. Resor, 469 F.2d 944 (D.C. Cir. 1972) and

Krzeminski v. United States, 13 Cl. Ct. 430 (1987), he asserts that a Chapter 10 request may be

ineffective even if the service member is not found mentally incompetent. According to

Ferguson, the court must look to whether the request was “voluntary, knowing, and intelligent,”

and made with “sufficient awareness of the relevant circumstances and likely consequences.”

Krzeminski, 13 Cl. Ct. at 438 (citing Brady v. United States, 397 U.S. 742, 748 (1970)).

       Defendant argues that the Board applied the correct standard, citing Warren v. United

States, 41 F. App’x 408 (Fed. Cir. 2002). The Court in Warren held that “[a] request for

discharge is presumed to be voluntary…but an otherwise voluntary request may be rendered

involuntary if the claimant failed to understand the voluntariness of his actions due to mental

incompetence.” Id. at 410 (citing Scharf v. Dep’t of the Air Force, 710 F.2d 1572, 1574 (Fed.

Cir. 1983)).

       Warren v. United States supplies the correct legal standard. The case concerned an army

reservist (Warren) who went AWOL for several months. Id. at 409. A mental status evaluation

conducted prior to Warren’s induction into service indicated that Warren’s condition was

normal, but noted a “blunted and flat affect.” Id. When Warren returned from his absence he

                                                15
consulted with legal counsel, requested a Chapter 10 discharge, and received an “other than

honorable” discharge. Id. He was subsequently diagnosed with paranoid schizophrenia. Id.

Warren applied to the ADRB and the ABCMR for a discharge upgrade, alleging that he suffered

from schizophrenia at the time he made the Chapter 10 request. Id. Warren sought relief in the

Court of Federal Claims, but the court dismissed his claim for correction of records and back

pay, finding that his discharge was voluntary. Id. 5

         Thus, on appeal, the issue before the Federal Circuit was whether Warren’s discharge

request was voluntary. The Federal Circuit stated that “[a] request for discharge is presumed to

be voluntary…but an otherwise voluntary request may be rendered involuntary if the claimant

failed to understand the voluntariness of his actions due to mental incompetence.” Id. at 410.

         Warren argued that he had exhibited a flat and blunted affect upon induction, which is a

symptom of schizophrenia, that he had interpersonal problems at the time of discharge, and that

he was diagnosed with schizophrenia within one year of the discharge. Id. at 410. However, the

court deemed Warren’s request voluntary because “the record did not establish that [Warren]

suffered from a mental condition that prevented him from understanding the consequences of

requesting a discharge, particularly when faced with the alternative of trial by court martial.” Id.

at 410. There was “no psychiatric diagnosis made at the time, and Mr. Warren presented no

evidence that his condition was sufficient for a diagnosis of schizophrenia.” Id. Warren’s later

diagnosis of schizophrenia “[did] not demonstrate that he suffered from this condition at the time

of his discharge or that his alleged condition was severe enough to render his actions

involuntary.” Id.

         The Warren case flows from a long line of related cases dealing with the voluntariness of


5
 The Court of Federal Claims lacks jurisdiction to decide claims related to a military discharge if the discharge was
voluntary. See Moyer v. United States, 190 F.3d 1314, 1318 (Fed. Cir. 1999).

                                                         16
a service member’s request for discharge. See, e.g., Manzi v. United States, 198 Ct. Cl. 489, 505

(1972) (recognizing an involuntary resignation where the plaintiff was not “capable of

completely understanding his act; he was under extreme emotional pressure which interfered

with his clear thinking and this could have affected a sound judgment for his future, by reason of

being under the particular disorder”); McEntee v. United States, 30 Fed. Cl. 178, 184 (Fed. Cl.

1993) aff'd, 39 F.3d 1197 (Fed. Cir. 1994) (finding a voluntary discharge where plaintiff had

seen a psychotherapist for “severe depression, despair, and suicidal thoughts,” but there was no

evidence that plaintiff’s mental capacity “rendered him unable to make a competent decision”);

Gallucci v. United States, 41 Fed. Cl. 631, 642-43 (Fed. Cl. 1998) (a plaintiff’s assertion of

“severe mental stress and anxiety” was insufficient on its own to show that the plaintiff “was in

any way incapable of exercising free will or understanding his actions”); Scarseth v. United

States, 52 Fed. Cl. 458, 476 (Fed. Cl. 2002) (finding resignation voluntary where there was “no

evidence that plaintiff was rendered unable to competently decide whether to resign,” and where

plaintiff had “failed to show that he was mentally incompetent at the time he submitted his

resignation”); Sinclair v. United States, 66 Fed. Cl. 487, 494 (Fed. Cl. 2005) aff'd, 192 F. App’x

966 (Fed. Cir. 2006) (finding plaintiff’s allegations of “tremendous emotional strain” insufficient

to show that he was “incapable of understanding his actions at the time he resigned”).

         These cases all stand for the proposition that great mental stress, emotional strain, or

diagnoses of anxiety, depression, and the like, are insufficient to show that a service member

lacked the capacity to voluntarily request a discharge. Under Warren and the above-cited cases, a

service member must show that his mental state prevented him from understanding the meaning

and consequences of his actions. 6


6
  The standard articulated in Krzeminski, which Ferguson cites, reflects only the general standard applied by courts
to determine whether a criminal defendant voluntarily waived the right to jury trial. See Krzeminski, 13 Cl. Ct. at

                                                         17
         Robinson v. Resor is distinguishable. That case concerned a service member (Robinson)

whose wife operated two motels and cared for the couple’s minor children. 469 F.2d at 946.

Robinson’s wife became ill and suffered frequent hospitalizations, leading Robinson to apply for

an honorable discharge. 469 F.2d at 946. Robinson’s commanding officer did not forward the

request up the chain of command, in violation of army regulations, because the commanding

officer did not want to lose him. Id. When Robinson’s wife entered the hospital again for

surgery, Robinson requested leave to attend to the motels and childcare, but was granted

inadequate time to arrange his affairs. Id. Robinson then spent the next three weeks willfully and

knowingly absent without leave (AWOL). Id. During that period, he returned to base and

withdrew $100.00 from the disbursing office. Id. at 946-47.

         Upon returning to base, Robinson was charged with being AWOL for 20 days, larceny of

the $100.00, and making a fraudulent claim for payment during a period of absence without

leave. Id. at 947. The “mental strain” resulting from his wife’s illness, his business problems, and

the charges caused Robinson to suffer a nervous collapse. Id. While under psychiatric care,

Robinson signed a letter of resignation for the good of the service, and received an “other than

honorable” discharge. Id. He subsequently applied to the ADRB to set aside his discharge and

recover back pay, but the ADRB denied the request. Id. at 945.

         In reversing the ADRB’s decision, the Robinson court determined that the case “was

lacking…both procedural due process and substantive justice.” Id. at 949. The court emphasized

the “unacceptably narrow focus of the Board’s inquiry.” Id. at 946. Though the court accepted

the Board’s findings that Robinson was “legally competent” and that “there was no outright

coercion,” the court criticized the Board’s “refusal…to weigh the other pressures which

438. Krzeminski did not concern a voluntary discharge, but rather a waiver of certain administrative remedies. See
id. at 435-36. By contrast, the standard articulated in Warren, and the line of cases from which it flows, is specific to
voluntary discharges of service members.

                                                           18
obviously affected the soundness of Robinson’s judgment.” Id. at 950. Robinson was “officially

certified sane” when he left psychiatric care, but “he was also clearly acting unwisely and under

pressures that had recently threatened even his grip on reality.” Id. The court stated that it

“[could not] condone the Board’s determined effort to overlook the fact that Robinson’s earlier

request for a discharge under honorable conditions had not been properly forwarded,” because

“[i]f it had been, the unfortunate predicament which led to his second resignation might never

have arisen.” Id.

       Thus, Robinson is both legally and factually inapposite. Robinson’s discharge was

deemed involuntary as much because of the procedural defects as the substantive issues, and the

court based its remand in large part on the ADRB’s failure to consider certain crucial evidence.

See id. at 946 (noting the “unacceptably narrow focus of the Board’s inquiry”), 950 (accusing the

ADRB of a “total failure to consider” whether the charges were substantiated).

       Unlike the ADRB in Robinson, the ABCMR here carefully considered the totality of the

record before it, and sought an advisory opinion to interpret Ferguson’s medical record.

Furthermore, the language used by the Board shows that its inquiry was in line with the standard

set forth in Warren. The Board’s December 3, 2008 decision found “no other evidence of record

(e.g., what tests were performed) to show that [Ferguson] was mentally incompetent or to show

that he could not distinguish right from wrong.” AR 131 (emphasis added). When the Board

denied Ferguson’s application for reconsideration in 2010, it acknowledged Robinson but stated

that “each case is decided on its own merits.” AR 14. The Board reconsidered Ferguson’s mental

competence in light of the report from Ferguson’s psychiatrist, but found no reason to change its

decision. AR 14. In addition, the Board concluded that the Ferguson’s service record “[did] not

contain any indication that the request for discharge was made under coercion or duress.” AR 15



                                                 19
(emphasis added). This language mirrors the standard set forth in Warren and the other cases in

that line. See Warren, 41 F. App’x at 410. Thus, the Board’s assessment of Ferguson’s mental

competence and consideration of coercion and duress was correct, appropriate, and “in

accordance with law” under the APA. See 5 U.S.C. § 706(2)(A).

       2. The Board’s Decision is Supported by Substantial Evidence

       While the question of whether Ferguson was medically fit for service differs from

the question of whether he voluntary signed his Chapter 10 request for discharge in lieu

of court-martial, the Board appropriately relied on the same evidence in deciding both.

Ferguson argues that he was unable to sign the request due to his mental state. Therefore,

evidence of his mental state in January 1992 is relevant to both his fitness for duty at the

time of discharge and his competence to sign a Chapter 10 request.

       As discussed above, the Board reasonably concluded that Ferguson was not

mentally incompetent during his hospitalization, noting that his medical records describe

him as depressed and anxious, but “intact” and aware of the charges and his legal options.

       Ferguson relies heavily on the January 30, 1992 progress note from Dr. Ruhland,

which stated that approaching Ferguson about the Chapter 10 discharge was “not

advisable because [Ferguson] is not competent enough to sign any forms or documents.”

AR 401. Ferguson suggests that his attorney disobeyed Dr. Ruhland’s warning and

obtained the signature on the Chapter 10 request despite Ferguson’s mental state.

       Dr. Ruhland’s note undoubtedly weighs in Ferguson’s favor, but it is not

conclusive. As Teague noted in his advisory opinion to the Board, the rest of the

language in Dr. Ruhland’s note is not consistent with how a doctor would likely describe

a patient who was fully mentally incompetent. See AR 133. The phrase “not competent



                                                 20
enough to sign any forms or documents” is ambiguous, in light of Dr. Ruhland’s

contemporaneous statement that Ferguson was “very stressed out and very depressed.”

AR 401. Furthermore, as the Board noted, Ferguson was discharged that same day, and

no other tests or formal evaluations of Ferguson’s mental state were performed. See AR

130-31. This evidence militates against the conclusion that Ferguson’s mental state

prevented him from understanding his actions. Given the ambiguity, the Board

reasonably looked to other evidence in Ferguson’s medical record to determine his

mental competence. The other evidence indicated that Ferguson’s mental state was intact,

he understood the charges, and he understood that he had to request a Chapter 10

discharge or face trial by court-martial. 7 The Board was not required to accept Dr.

Ruhland’s statement as gospel in light of contrary evidence and contrary analysis from

the Board’s medical advisor.

        The Board’s decision is “supported by substantial evidence,” Walker, 848 F.

Supp. at 255, and there is a rational connection between the evidence that the Board’s

decision. As with the medical retirement claim, under the “unusually deferential”

standard of review applicable in these cases the Court must conclude that the agency

complied with the APA.

    C. Timeliness of Ferguson’s Claim

        Defendant also moves to dismiss on the ground that Ferguson’s suit is time-barred.

Defendant argues that, although Ferguson challenges an ABCMR decision rendered on October

1, 2010, the Board actually decided the substance of Ferguson’s claim in May 5, 1999, and

Ferguson’s application for reconsideration only tolled the statute until May 17, 2000. See AR

7
  The notes made by medical personnel during Ferguson’s hospitalizations suggest that he may have vacillated some
in deciding whether to request a Chapter 10 discharge or fight the charges at trial. See AR 377-78, 395-97. However,
this is not an indication that he was incompetent to make or understand the decision.

                                                        21
159. Thus, under Defendant’s theory, the six-year statute of limitations set forth in 28 U.S.C. §

2401 (which governs APA claims) gave Ferguson until 2006 to seek review of the Board’s

decision. Defendant contends that subsequent applications for reconsideration of the same

decision, or subsequent repackaging of the claim as one for “medical retirement” or other relief,

should not extend the limitations period.

       Ferguson responds that his 2008 application for medical retirement was a different claim

than his earlier applications, or, in the alternative, that the ABCMR effectively reopened his

claim in its 2008 decision.

       Despite the parties’ diligent and thorough briefing on the subject, the Court need

not decide this question. As discussed above, the Court concludes that the ABCMR acted

rationally in denying Ferguson’s request for reconsideration. Therefore, even assuming

that Ferguson’s 2008 application was timely, Defendant is entitled to summary judgment.

A separate Order consistent with this Memorandum Opinion will issue.

       August 14, 2014




                                                     BARBARA J. ROTHSTEIN
                                                     UNITED STATES DISTRICT JUDGE




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