                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA

BABATU M. RUDO,                                )
                                               )
                  Plaintiff,                   )
                                               )
        v.                                     )    Civil Action No. 09-02172            (GK)
                                               )
JOHN McHUGH,                                   )
Secretary of the Ar.my                         )
                                               )
          Defendant.                           )
_____________________________ )
                                    MEMORANDUM OPINION

        Babatu      Rudo 1     ("Plaintiff"         or    "Rude"),     a    former      service

member       in the United States Army                   ("Army") ,   brings     this   action

pursuant to the Administrative Procedure· Act                          ("APA"),      5 U.S.C.

§§     701   et    seq.      and   the    Fifth Amendment's           Due   Process      Clause

against       John     McHugh       ("Defendant") ,          Secretary      of    the    Army,

challenging the Army Board for Correction of Military Records'

( "ABCMR" or "Board")              decision regarding the characterization of

his discharge from the Army.

        This matter is before                 the   Court    on Defendant's Motion to

Dismiss or,         in the Alternative,             for Summary Judgment             [Dkt.   No.

35]    and Plaintiff's Cross-Motion for Summary Judgment                             [Dkt.   No.

41].    Upon       consideration         of   the   Motions,     Oppositions,         Replies,

the administrative record,                and the entire record herein, and for




1
  In 1988, Plaintiff legally changed his name from Fred Myers to
Babatu Rude. Administrative Record ("AR") at 256 [Dkt. No. 8].
the reasons set                forth below,        Defendant's Motion is granted and

Plaintiff's Motion is denied.

I .       BACKGROUND

          A.      Regulatory Framework

          Under     the        Army     Regulations      in     place      in    1968,       an    Army

soldier          could        be      discharged     upon       a   finding        that       he     was

"unsuitable"             for       further   military        service.      See    Administrative
                     2
Record ("AR")             at 66       (Army Regulation ("A.Reg.")               635-200, 635-212

~     1) .     A discharge          for unsuitability was proper if                    the    soldier

exhibited any one of the following conditions:                                  "(1)   Inaptitude,

    (2)   Character       and         behavioral    disorders,       (3)        Apathy       (lack    of

appropriate          interest),           defective          attitudes     and     inability          to

expend          effort        constructively,         ( 4)     Alcoholism,         ( 5)      Enuresis

(bedwetting),            or     (6)    Homosexuality." AR at 67             (A.Reg.       635-212 ~

(6)(b)).




2
  On April 1, 2010, Defendant filed an Administrative Record in
support of his First Motion for Summary Judgment consisting of
427 pages, numbered 1 through 427. On June 29, 2012, Defendant
filed a Supplemental Administrative Record in Support of his
present Motion to Dismiss or, in the Alternative, for Summary
Judgment consisting of 61 pages, numbered 428 through 489 [Dkt.
No. 34]. See, infra, Section I.C.      (discussing in detail the
procedural   background  of   this  matter) .   Because Defendant
continued the sequential pagination . of the Supplemental Record
beginning with page 428j the Court will reference the original
Administrative Record and the Supplemental Record collectively
as the "Administrative Record" or "AR."

                                                - 2 -
       Before removing a soldier on "unsuitability" grounds,                                        the

Army    was    required       to     establish:          (1)     that          the    soldier      was

unlikely      to    develop        "sufficiently         to     participate            in    further

military training and/or become a satisfactory soldier" and (2)

that the soldier met the "retention medical standards" in place

at the time. See id. at 66 (A.Reg. 635-212                          ~   3(b)).

       To satisfy these requirements,                    a     soldier's unit commander

was    required       to    refer     the     soldier         for       physical       and    mental

evaluations         and      to     provide        the         medical          examiners          with

"[s]ufficiently            detailed        information          about      the        reasons       for

considering the individual                    ·. unsuitable" so that the medical

examiners          would     have      a      thorough          understanding                of     the

contemplated action. Id. at 68 (A.Reg. 635-212                             ~    8).

       If    the medical          examiners determined that the                       soldier was

medically unfit for service,                  the discharge process pursuant to

"unsuitability" grounds was halted.                      Id. at 69             (A.Reg. 635-212        ~

9).    If,    however,       the    medical       examiners             determined          that    the

soldier met         "retention medical            standards,"             i.e. ,      that    he was

medically fit         for    further military service,                     his discharge            for

unsuitability would be approved and the soldier would be sent

back to his         commanding officer for                further processing of his

discharge. Id.        (A.Reg. 635-212         ~   9).




                                             - 3 -
          Once the soldier was medically cleared for an unsuitability

discharge,        the commanding officer was required to provide him

with the "basis of the contemplated separation and its effect."

Id.   (A.Reg. 635-212              ~    10(a)(1)-(3)). The "effect" of a soldier's

separation was governed by the characterization of his service.

Pl. 's First Cross-Mot.                  for Summ.                  J.   App.     ("Pl.'s App.")          at 13

[Dkt. No. 13-4]            (A.Reg. 635-200              ~       1.8).

          In 1968, a soldier's service could be characterized as one

of    five     general       types        of    discharges,                  ranging         from   the      most

satisfactory              characterization                      of         service       to       the      least

satisfactory:             "(1)     Honorable,               (2)          General       [u]nder      honorable

conditions,          (3)         Undesirable            [u]nder              conditions         other        than

honorable,         ( 4)     Bad         Conduct         [u]nder              conditions         other        than

honorable,        [or]      (5)    Dishonorable."                    Id.    at 12       (A.Reg.     635-200      ~

1. 5) .

          An   unsuitability             separation                  could        be    characterized           as

either an "Honorable or General discharge," depending upon the

soldier's        service          record.      AR       at          66     (A.Reg.      635-212     ~     4(b)).

Either of        those characterizations entitled a                                     soldier to           "full

Federal        rights      and         benefits,"           while           "an    undesirable          or    bad

conduct        discharge          may    or    may          not          deprive       the    individual        of

veterans' benefits administered by the Veterans Administration."

Pl.'s App. at 13 (A.Reg. 635-200                            ~       1.8).

                                                    -   4       -
                                                                I'
      The commanding officer overseeing the d1scharge process was

required to explain to the soldier his rights. AR at 69                              (A.Reg.

635-212   ~   10(a)(1)-(3)). These rights included the right of the

soldier   to    present     his      case    before      a   board        of   officers,       to

submit statements on his own behalf,                     and to be represented by

counsel. Id. Alternatively, the soldier could waive these rights

in writing.     Id.   A soldier who chose                to waive his            rights    was

required to     submit    a        signed statement          indicating that         he    had

"been advised of the basis for his contemplated separation and

its effect and the rights available to him.                          11
                                                                          Pl. 's App.     at    9

(A.Reg. 635-212). This statement read:

      I   understand  that   I    may expect   to  encounter
      substantial prejudice in civilian life in the event a
      general discharge under honorable conditions is issued
      to me. I further understand that as the result of
      issuance of an undesirable discharge under conditions
      other than honorable, I may be ineligible for many or
      all benefits as a veteran under both Federal and State
      laws, and that I may expect to encounter substantial
      prejudice in civilian life.

Id.

      After    the    soldier        had    been    adequately            informed   of    his

rights under the applicable regulations, and either exercised or

waived those rights in a signed statement, he was issued a final

discharge certificate stating "the specific reason and authority

for   [his]    discharge,     11
                                   effectively       ending     his        service   in    the

Army. Id. at 10 (A.Reg. 635-212               ~   23).


                                            - 5 -
       B.    Factual Background 3

       Plaintiff      served     in    the       Army         from    September         1966     until

November    1968.     Complaint        ("Compl.")         4
                                                               ~~     1,   21     [Dkt.    No.     1].

During his tenure with the Army,                      Plaintiff received several non-

judicial    punishments        under Article              15     of    the      Uniform Code        of

Military Justice 5 for          infractions such as visiting "off-limits"

bars   while     in   Vietnam,        smoking           marijuana,         and    going        "absent

without leave" or "AWOL." Id. ~~ 7, 9-11.

       In   October     1968,     as        a     result        of     Plaintiff's        multiple

Article     15   reprimands,          his       commander            reduced      his     rank     and

recommended      that   he      receive          an     administrative            discharge        for

"unsuitability"       due to apathy pursuant                     to Army Regulation 635-
3
   The following facts are drawn from the Factual Background
section of the District Court's March 24,        2011 Memorandum
Opinion [Dkt. No. 22 at 4 -7] . The facts as set forth in that
Opinion are referenced by both parties and, unless otherwise
noted, they are not in dispute. See Defendant's Statement of
Facts   ("Def.'s  Statement")   [Dkt.  No.   35-3];     Plaintiff's
Statement of Facts (Pl.'s Statement") [Dkt. No. 41-2] .
4
  On November 16, 2009, Plaintiff filed his Complaint. On March
16, 2012, Plaintiff filed an Amended Complaint [Dkt. No. 25] .
While styled as an Amended Complaint, the Court considers it a
Supplemental Complaint because Plaintiff "reasserts his other
claims held in abeyance by the Court," incorporating the facts
and claims originally asserted. Amended Complaint ("Am. Compl.")
~ 51. Accordingly, the Court, like the parties, refers to both
complaints.
5
  A reprimand under Article 15 of the Uniform Code of Military
Justice is a form of non-judicial military punishment that
permits commanders to administratively discipline a service-
member without a court-martial. See 10 U.S.C.A. § 815(a).


                                                - 6 -
212. Id. ~ 12; AR at 65-72.

       As   part           of     the     discharge           process,       Plaintiff        received

physical     and       mental           health     evaluations.           AR    at     100-107.    The

evaluating        physician             determined         that    Plaintiff         was     suffering

from    a   "back          condition,"        but        he    made     no     other       significant

diagnoses        or    findings            with     respect        to     Plaintiff's        physical

health.     Id.       at        100-103.    Accordingly,            the      physician       concluded

that Plaintiff was physically fit                             for further military service

and referred Plaintiff for a mental health examination. Id.

       A psychiatrist in the Army's psychiatric clinic evaluated

Plaintiff        and diagnosed him with a                         "[s] ociopathic personality

with passive-aggressive features."                            Id. at 106. The psychiatrist

determined that Plaintiff would "not adjust to further military

service     and        [that]           further         rehabilitative         efforts       probably

[would]     be    nonproductive."                 Id.    Specifically,          the    psychiatrist

determined that:

        [Plaintiff]  gives  a   history   of  marked   social
       inadaptability prior to and during service. He has
       been arrested at least four times for such offenses as
       disorderly conduct and under-age drinking. He joined
       the Army in September 1966 after he had impregnated
       one of his girlfriends and was not willing to pay the
       doctor's bill. While in the Army he has amassed
       several Articles 15 for such offenses as missing
       formation, going to an off limits bar in Vietnam,
       having possession of illegal drugs and AWOL. He uses
       poor judgment, is not committed to any productive
       goals and is completely unmotivated for        further
       service.

                                                   - 7 -
Id. The psychiatrist then concluded that Plaintiff was "mentally

responsible,        able to distinguish right from wrong and to adhere

to the right,            and ha [d]    the mental capacity to participate in

[administrative           discharge]        proceedings,"      and     recommended         that

Plaintiff be discharged pursuant to Army Regulation 635-212 for

unsuitability. Id.

       Plaintiff's         medical      reports        were   then    forwarded      to     his

commander,         and    his    discharge      for     unsuitability       was    approved.

Plaintiff      chose        to    waive     his      rights    to    appear       before     an

administrative discharge board,                   to submit statements on his own

behalf,      and    to     be    represented      by    counsel,     Am.    Compl.    ~     32;

Def.'s      Statement~          21, and signed the standard waiver statement

as described under Army Regulation 635-212,                          Def. 's Statement        ~

22; see Pl.'s App. at 9 (Waiver Form).

       On November 5,            1968, after serving for just over two years

in    the    Army,       Plaintiff      was     administratively           discharged       for

unsuitability due to apathy,                  a separation under the category of

a "General" discharge "under honorable conditions." Am. Compl.                                ~

32.    Plaintiff's           discharge        form      indicated      that       "[a]pathy,

defective          attitudes          and      inability       to      expend        efforts

constructively," were the reasons for his separation. AR at 379

(Pl.'s Discharge Certificate).



                                              - 8 -
            Following his administrative discharge,               Plaintiff continued

to suffer from mental health problems as well as drug addiction.

Am.      Compl.       ~   35.    Plaintiff made         repeated attempts    to procure

disability           benefits       from   the    Department    of   Veterans      Affairs

    ("VA") ,      claiming that      his drug dependence         and mental problems

were        "service-connected disabilities. " 6 Def. 's Statement ~~ 27-

30.         The    VA     denied     his   requests       for   benefits     because    it

determined that Plaintiff's "drug dependence and mental problems

            . were not service connected disabilities under the law." 7

Id.     ~    29.

            It was only after the recognition of Post-traumatic Stress

Disorder           ( "PTSD")    as a psychiatric disorder in the early 1980s

that        Plaintiff       was    able    to    begin    distinguishing     his    mental

health claim from his personality disorder. AR at 7-8.

            In July 1997,         after several unsuccessful attempts to prove

that        his    PTSD    was     service-connected,        Plaintiff   submitted     new

evidence to the VA and asked the VA's Board of Veterans' Appeals

6
   A veteran is ineligible for VA healthcare or disability
compensation unless an injury or illness is "service-connected,"
or the veteran otherwise qualifies due to his indigent status.
See 38 C.F.R. § 3.303.
7
  At the time of his discharge, Plaintiff's mental                         health issues
were considered to be a "pre-service" disability.                          A personality
disorder diagnosed in military health records may                          be considered
a "pre-service," or a pre-existing condition and                           therefore not
an illness or injury that is service-connected.                             38 C.F.R. §
3.303(c).

                                                - 9 -
    ( "BVA")   to re-open his claim.             Id.    at 10. The BVA concluded that

Plaintiff's          new    evidence:          ( 1)    revealed       his      involvement       in

several        hostile      actions       in     Vietnam       and     ( 2)     established       a

service-connection           for    PTSD.       Id.     Accordingly,          the   BVA granted

Plaintiff        a   70%    disability         rating     and    backdated          this    rating

effective as of August 1,               1994,         the date on which Plaintiff had

filed      his   first     claim    for     service-connected            PTSD.      Id.    at   10,

217-18, 229-33.

         In 2006,     Plaintiff       filed a          claim with the VA "to receive

benefits as of an earlier effective date." Am.                                Compl.   ~   39. The

VA, however, denied Plaintiff's claim, AR at 274-76, and instead

forwarded the claim to the ABCMR, see Am. Compl. ~ 39. 8

         According to Plaintiff,               the VA mistakenly failed to submit

Plaintiff's          VA    and   Army      records        to    the     ABCMR       and,     after

reviewing the limited record,                   the ABCMR denied Plaintiff's claim

on statute of limitations grounds.                       Id.    Plaintiff then retained

counsel and filed a              request       for reconsideration along with his



8
  The system of awarding disability benefits in the ABCMR and the
VA are distinct and based on separate calculations. Powell v.
Marsh, 560 F.Supp. 636, 641 (D.D.C. 1983). "The VA's rating is
based on the applicant's current disability. By contrast, the
ABCMR is charged with determining what disability rating would
have been appropriate at the time of the applicant's discharge
from the Service." Id. Accordingly, "[i] t is well established
that a VA determination of extent of disability at some post-
discharge date, is not binding upon the ABCMR." Id.


                                               - 10 -
VA and Army records. Id.                       ~   40.

        C.            Procedural Background

                      1.      ABCMR's Decision upon Reconsideration

        The           ABCMR        determined              that        Plaintiff's         new       evidence

warranted waiving the                     statute of              limitations       and,       accordingly,

it agreed to consider the merits of his claim;                                           AR at 1-14.             On

April        8   I         2008,    the     ABCMR           issued         its     decision,           denying

Plaintiff's request for relief. Id.

        In       his        request      for       reconsideration,              Plaintiff       asked        the

ABCMR to either void or upgrade his 1968 discharge status.                                                      Id.

at 21.       Plaintiff claimed that such action was warranted because

the   Army            violated      his        "[c] onstitutional               liberty     interest"            by

misleading him into waiving his right to a hearing,                                              id.    at 43,

and because the Army acted contrary to established regulations

by failing to consider the effect of his diagnosed personality

disorder on his separation, see id. at 41-44.

        The ABCMR construed                        Plaintiff's           request    as    either:        ( 1)     a

claim that                 Plaintiff      had      a   medical         disability at           the     time      of

discharge             and      therefore           should         have     been     considered          for       a

medical              discharge      or      ( 2)       a    claim        that      he    was     wrongfully

discharged             for     unsuitability due                  to    apathy.     Id.    at     5-14.         The

ABCMR' s      decision did not                     substantively address                 Plaintiff's due

process claim.


                                                       - 11 -
        Regarding          the        medical          disability        claim,         the      ABCMR

determined          that     Plaintiff          did      not     qualify        for     a     service-

connected          disability.           Id.     at     12.      Addressing           the     wrongful

discharge          claim,     the        ABCMR        determined         that     "[Plaintiff's]

discharge for unsuitability due to apathy,                               a defective attitude

and inability to expend efforts constructively was appropriate

and [that] there [was] no reason to change it." Id. at 13.

               2.      District Court's March 2011 Opinion

        On    November       16,      2009,          Plaintiff    commenced           this     action,

challenging          the    ABCMR's        denial        of     his   request          for     relief.

Plaintiff asked "[t] hat the Court set aside the BCMR decision

limited       to    denial       of      Plaintiff's           request    to     set        aside     the

General       service characterization for unsuitability,                                   and remand

to the BCMR for appropriate relief." Compl. at 8.

        On March 24,         2011, after briefings by the parties on their

first    cross -motions            for    summary        judgment,        the    District           Court

granted in part Plaintiff's initial cross-motion,                                     remanding the

case     to    the     ABCMR        for        the     limited     purpose        of        addressing

Plaintiff's due process claim. Order (March 24,                                 2011)        [Dkt. No.

21] .   The    Court        further       ordered        that     Plaintiff's          "APA     claims

challenging the characterization of his 1968 military discharge

are held in abeyance." Id.




                                                 - 12 -
                 3.     ABCMR's Decision on Remand

       On    November       1,     2011   the    ABCMR     issued   its    decision     on

remand, again denying Plaintiff's request for relief. AR at 430-

34.

       The ABCMR determined that "[i] n the absence of evidence to

the contrary,           it is presumed that all requirements of law and

regulations were met and [that]                 the rights of the applicant were

fully protected throughout the separation process and that the

type        of        discharge,      the       reason      for     separation,        and

characterization of service were appropriate considering all the

facts of the case." Id. at 433.

                 4.     Motions Presently Before the Court

       On March 16,         2012,    Plaintiff filed his Amended Complaint.

Plaintiff again asked "[t]hat the Court set aside BCMR decision

limited to denial of plaintiff's request to set aside the 1968

general      service characterization for unsuitability,                    and remand

to the BCMR for appropriate relief." Am. Compl. at 13.

       On June 29, 2012, Defendant filed his Motion to Dismiss or,

in the Alternative,              for Summary Judgment.        On October 23,       2012,

Plaintiff         filed    his     Cross-Motion      for     Summary      Judgment.     On

January 4,        2013,    Defendant filed his Opposition to Plaintiff's

Cross-Motion and Reply in Support of his Motion                        [Dkt. No.      45].




                                            - 13 -
On February 28,               2013,   Plaintiff filed his Reply in Support of

his Cross-Motion [Dkt. No. 48].

II.     STANDARD OF REVIEW

       A.      Judicial Review of Military Correction-Board Decisions

       Under       §    1552 (a)      of      Title       10    of   the United States              Code,

"[t]he       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).          The    statute          directs    the

Secretary to make such corrections through boards of civilians.

Id.

        Under the APA, a court may set aside an agency's decision

only    if    the       decision      is       "arbitrary,           capricious,         an     abuse    of

discretion,            or     otherwise            not     in     accordance        with        law"     or

"unsupported by substantial                         evidence."        5 U.S. C.         §§    702 (2) (A) ,

(2) (E). The substantial evidence standard is "highly deferential

to     the    agency          fact-finder,               requiring         only    'such        relevant

evidence      as        a    reasonable            mind    might      accept       as    adequate        to

support a conclusion."' Rossello v. Astrue,                                 529 F. 3d 1181, 1185

(D.C. Cir. 2008)              (quoting Pierce v. Underwood, 487 U.S. 552, 565

(1988)).

       Courts review military correction-board decisions under an

"unusually             deferential            application            of     the         arbitrary        or

                                                    - 14 -
capricious       standard,"         Kreis    v.     Sec'y of     Air    Force,        866    F.2d

1508, 1514       (D.C. Cir. 1989), in order to ensure that "courts do

not    become a      forum for        appeals by every soldier dissatisfied

with     his    or   her     ratings        [and    thereby]      destabilize         military

command        and   take    the     judiciary        far   afield      of     its    area     of

competence,"         Cone    v.     Caldera,       223    F.3d   789,    793     (D.C.       Cir.

2000).     "Perhaps         only     the    most      egregious        decisions       may     be

prevented under such a deferential standard of review." 9 Kreis,

866 F.2d at 1515.

       To survive judicial review,                  the military agency's decision

"must give a reason that a court can measure,                            albeit with all

due deference, against the 'arbitrary or capricious' standard of

the APA." Id. at 1514-15. A court "will not disturb the decision

of an agency that has examined the relevant data and articulated

a satisfactory explanation for its action including a rational

connection between            the    facts        found   and    the    choice       made."    MD

9
  In reaching this determination, the Court of Appeals reasoned
that, "[w]hile the broad grant of discretion [under the statute]
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"
because "[i]t 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,' 10 U.S.C. § 1552(a), than it is if he is required to
act   whenever  a   court  determines   that   certain objective
conditions are met, i.e., there has been an error or injustice."
Kreis, 866 F.2d at 1514 (emphasis in original).

                                            - 15 -
Pharm.,       Inc.     v.    Drug Enforcement Admin.,                  133        F.3d 8,       16     (D.C.

Cir. 1998)           (internal quotation marks omitted).

        B.      Judicial Review of Constitutional Challenges to Agency
                Actions

        The APA also provides that                      "a reviewing court shall                       'hold

unlawful and set aside agency action'                          that is 'not in accordance

with the law'           or     'contrary to constitutional right."'                             Poett v.

U.S.,    657 F.        Supp.       2d 230,       241   (D.D.C.    2009)           (quoting 5 U.S.C.

§§   706(2) (A)        & (B)).       In contrast to the deferential standard of

review       described         above,       "a    court's      review        of     'constitutional

challenges to agency actions                                   is de novo.'"           Id.       (quoting

Cullman       Reg'l         Med.     Ctr.    v.     Shalala,      945     F.       Supp.        287,      293

(D.D.C.       1996))         " [A]    reviewing        court    owes    no deference                 to   the

agency's       pronouncement           on a       constitutional        question,"              and must

instead make "an independent assessment of a citizen's claim of

constitutional              right     when        reviewing      agency           decision-making."

Lead Indus. Ass'n v. Envtl. Prot. Agency,                           647 F.2d 1130, 1173-74

(D.C. Cir. 1980)             (internal quotation marks omitted).

III. ANALYSIS

        Plaintiff claims that the ABCMR's decision "refusing to set

aside        [his]     General        Discharge        was     arbitrary,           unsupported            by

substantial           evidence,       contrary to Army regulation,                         or    a     gross

injustice."          Pl.'s First Cross-Mot.                for Summ.         J.    at 10        [Dkt. No.



                                                  - 16 -
13] . 10     Plaintiff        also      claims         that     "[t]he        1968        discharge

proceedings violated minimum constitutional due process." Pl.'s

Cross-Mot. for Summ. J. at 11.

        A.       The ABCMR' s Decision to Uphold Plaintiff's Discharge
                 Characterization Was Not Arbitrary or Capricious

        Plaintiff          argues    that    he    was        wrongfully      discharged           for

unsuitability           due     to     apathy      because        "[t] he      Army-diagnosed

sociopathic          personality        disorder        qualified        as    a     reason        for

unsuitability."             Pl.'s    First     Cross-Mot.         for    Summ.       J.     at     10.

Plaintiff        contends      that,    contrary to Army Regulation 635-212,

the ABCMR failed to consider his "diagnosed mental condition in

relation to the misconduct under review." Id.; Compl.                                ~     23    ("The

commander and Army had no authority, nor support to disagree and

issue      an    incorrect,         mislabeled discharge.           This       was    in effect

a[n]       ultra     vires     delegation         of    the     psychiatric          examination

process         to   the    commander.").         Defendant        responds        that         "[t]he

ABCMR        properly       concluded        [that]      Plaintiff's          misconduct           and

military performance records supported the discharge                                      [that]    he




10
   Plaintiff's present Cross-Motion for Summary Judgment only
addresses his due process claim and "refers the Court to those
parts of his prior pleadings on the other issue[]       [held in
abeyance]," specifically directing the Court to his First Cross-
Motion for Summary Judgment. Pl.'s Cross-Mot. for Summ. J. at 2.
Accordingly, the Court refers to that motion for purposes of
resolving the claim that was held in abeyance.

                                             - 17 -
received." 11 Def.'s Mot. for Summ. J. at 13.

     In     deciding        to     uphold       Plaintiff's        discharge              for

unsuitability due to apathy,            the Board considered and discussed

Plaintiff's     military         personnel      records, 12      noting           that     he

"received    several      non-judicial      punishments        (NJP)        for   offenses

including missing         information,      going   to   an    off-limits           bar    in

Vietnam,    possession of illegal drugs,             and being absent without

leave (AWOL)." Id. at 9, 13.

     The    ABCMR   also     considered       and   discussed          the    connection

between Plaintiff's diagnosed mental                condition and his pattern

of misconduct.      The    Board specifically referred to                    Plaintiff's

psychiatric    diagnosis,         noting     that   he   was     "evaluated          by     a

psychiatric    clinic      with    a   discharge    diagnosis          of    sociopathic

11
   Defendant additionally argues that "Plaintiff's [APA] claim
must be dismissed because he waived judicial review by failing
to raise the claim to the Board." Def.'s Mot. for Summ. J. at 5
(emphasis added). More specifically, Defendant contends that
"Plaintiff asked the ABCMR to consider three alternative options
in correcting his record" but "now improperly asks this Court to
consider a fourth alternative not previously presented to the
Board." Id. at 6. Defendant's argument has no merit. While
Plaintiff has introduced an additional suggestion for correcting
his record, he certainly has not raised a 'claim' that was not
previously presented to the Board. Moreover, Plaintiff's request
for relief, i.e., "that the Court set aside BCMR decision .
and remand to the BCMR for appropriate relief," was entirely
proper. Am. Compl. at 13 (emphasis added).
12
   The ABCMR also considered, among other evidence, Plaintiff's:
pre-service criminal record; military medical records; post-
discharge applications for benefits; and post-discharge medical
records. AR at 5-12.

                                       - 18 -
personality with passive                   feature.    11
                                                               Id.     at       9.    Importantly,         the

Board also          noted    that    "[t] he      psychiatrist                  determined          that   the

applicant      was        mentally       responsible,           able        to       distinguish       right

from wrong and adhere to the right.                      11
                                                               Id.

       Considering the record before it,                             the ABCMR then determined

that    Plaintiff          "used poor          judgment,        was     not          committed        to   any

productive         goals,     and    was        completely           unmotivated              for    further

serviceu and concluded that his "discharge under the provisions

of Army Regulation             635-212          for unsuitability due                       to apathy,       a

defective           attitude,            and      inability                 to        expend         efforts

constructively was appropriate and                            [that]    there is no reason to

change it.    11
                    Id. at 13.

       As an initial matter, the ABCMR's decision was not contrary

to     Army        Regulation        635-212,          which           explicitly              allows       an

individual to be discharged for unsuitability due to apathy even

where that         individual has an accompanying mental disorder.                                         The

regulation         states    that        "individuals           considered             for    elimination

may    attempt       to    excuse    immature,         inadequate,                   and    undisciplined

behavior      on     the    basis    of        minor   or      non-disabling                 illness 11    but

that "[t] he presence of a physical or mental disease or defect-

producing          impairment       of    function            insufficient             to      warrant      [a

medical     separation]         is    no bar to               discharge          for       unsuitability~~


due    to   apathy.        AR at     67    (A. Reg.         635-212         ~    6 (b) (3))         (emphasis


                                                - 19 -
added) .    Therefore,         the    Court    concludes        that    Plaintiff's Army-

diagnosed personality disorder did not                         preclude         the Army       from

discharging him for unsuitability due to apathy.

         Affording     the ABCMR       an     "unusually deferential                 application

of   the    arbitrary or         capricious       standard,"         Kreis,      866       F.2d   at

1514,      the   Court     further      concludes       that     the     ABCMR        adequately

examined the record before it,                  including Plaintiff's pattern of

misconduct       and     his   psychiatric        diagnosis,         and    "articulated           a

satisfactory        explanation        for     its     action    including           a     rational

connection       between       the    facts     found    and     the    choice           made,"   MD

Pharm.,     Inc.,    133 F.3d at 16. Moreover,                  Plaintiff's significant

pattern of misconduct, especially in light of the psychiatrist's

determination that he was able to distinguish right from wrong,

at   a    minimum,     constitutes          "relevant     ·evidence        as    a       reasonable

mind might accept as adequate to support"                        the ABCMR' s decision.

Rossello, 529 F.3d at 1185.

         Accordingly,      the       Board's     decision       to     uphold        Plaintiff's

discharge for unsuitability due to apathy was not arbitrary or

capricious,      and it certainly was not the sort of "most egregious

decision[],      that     the Court may set aside.                     Kreis,        866 F. 3d at

1515.




                                              - 20 -
       B.        The Army        Did        Not    Violate       Plaintiff's      Due       Proces·s
                 Rights

       Plaintiff           claims           that     the      Army       "violated          minimum

 constitutional due process" because "the discharge procedure for

 unsuitability           [due   to]     apathy       failed      to   inform him        that     the

 accompanying 'discharge diagnosis' of personality disorder would

 deny full        VA benefits."             Pl.'s Cross-Mot.          for    Summ.     J.   at   11.

 Plaintiff argues that,                as a result of his discharge diagnosis,

he was deprived of his "liberty interest" in "free VA or private

medical         care"    and    "disability compensation." 13 Pl.'s Cross-Mot.

 for   Summ.        J.    Reply       at     6     (emphasis      added) .     Because         these

purported          interests          are     more        accurately     · characterized          as

property interests, the Court treats them as such.

       Defendant disputes               Plaintiff's claim,              arguing that         "[t] he

ABCMR correctly concluded that Plaintiff failed to demonstrate

that   his       due     process      rights       were    violated."        Def. 's    Mot.     for

Summ. J. at 17.

       The       procedural       component          of    the    Due    Process       Clause     is

intended to "impose constraints on governmental decisions which

13
    It is worth noting that, soon after his discharge, Plaintiff
 began receiving certain VA benefits and qualified for placement
 in rehabilitation and counseling programs. For instance, in the
 early 1970s, Plaintiff received 30% disability rating from the
 VA for his leg and back problems, AR at 133, and throughout the
.1960s and 1970s, Plaintiff was admitted to several VA hospitals
 and treated in twelve drug rehabilitation programs, Compl. ~ 35;
 AR at 129-44, 158.
            I




                                                  - 21 -
deprive        individuals            of       'liberty'           or      'property'           interests."

Matthews       v.    Eldrige,            424    U.S.        319,     332      (1976).          In    order     to

maintain a due process claim Plaintiff "must establish that the

government          deprived         him       of    a     1 iberty      or       property          interest."

Chamness v. McHugh,                 814 F.      Supp.       2d 7,       16    (D.D.C.         2011)     (citing

Kentucky Dep't of Corr. v.                      Thompson,           490 U.S.         454,      460    (1989)).

Indeed,     " [o] nly         after      finding           the     deprivation           of     a    protected

interest       do [es]        [the    Court]         look to        see      if    the        [government's]

procedures          comport         with    due      process."          Am.       Mfrs.       Mut.    Ins.     v.

Sullivan, 526 U.S. 40, 59 (1999).

       Plaintiff has               not     asserted a            cognizable property interest

of     which        the   government                 has     deprived             him.        Plaintiff        is

essentially arguing that his Army diagnosis in 1968 resulted in

the    deprivation            of     certain         VA     benefits          that       he     expected       to

receive after his discharge.                          However,          "[t] he Supreme Court has

explained       that      property             interests         arise        in    specific          benefits

that    a   person            has     already            acquired"           but     that       where        "[a]

plaintiff       is    seeking         to    acquire         disability benefits                                no

property interest is implicated." Powell v.                                       Marsh,       560 F.    Supp.

636,   641 n.6        (D.D.C.        1983)          (emphasis in original)                    (citing Board

of Regents v. Roth, 408 U.S. 564, 575 (1983)).

       Therefore,         a     former         service-member,                like       Plaintiff,          "who

might qualify for potential future veterans'                                       benefits," does not


                                                     - 22 -
have    "a   due   process     property    interest     in    the    expectation of

those benefits." Owings v. Brown,             86 F.3d 1178,         1178    (Fed. Cir.

1996); Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005)

 ("To have a property interest in a benefit .                        [a person] must

have    more    than   a   unilateral      expectation       of     it.     [She]   must

instead have a legitimate claim of entitlement to it.") . 14

       Having      concluded     that     Plaintiff's        "due    process        claim

falters for lack of property interest .                       [the Court] need go

no further" with the due process analysis. Sullivan, 526 U.S. at

65.    Accordingly,    Plaintiff has not         established a            violation of

his due process rights.




14
   Moreover, even assuming that Plaintiff had a property interest
in his· expectation of future VA benefits, the Administrative
Record does not support a finding that the Army deprived
Plaintiff of those benefits. Although it is correct that a
number of Plaintiff's requests for benefits were denied, those
requests were not denied because of the Army's discharge
diagnosis. Rather, the VA denied several of Plaintiff's requests
for mental health related benefits because the VA determined,
based on its own evaluations, that Plaintiff's disabilities were
not service-connected. See, e.g., AR at 172-73 (September 15,
1983 VA Decision relying on then-current VA physical and
psychiatric examinations to conclude that "[p]ost traumatic
stress neurosis was not found"). Thus, the Administrative Record
does not show that the Army "deprived [Plaintiff] of a liberty
or property interest." Chamness, 814 F. Supp. 2d at 16.

                                        - 23 -
IV.   CONCLUSION

      Upon   consideration   of   the   Motions,   Oppositions,   Replies,

and the entire record herein,       and for the reasons set forth in

this Memorandum Opinion,      Defendant's Motion to Dismiss,        or in

the Alternative, for Summary Judgment is granted and Plaintiff's

Cross-Motion for Summary Judgment is denied.




March 20, 2013
                                         United States District Judge

Copies to: attorneys on record via ECF




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