                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-15-2004

Green v. Secretary Army
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3547




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"Green v. Secretary Army" (2004). 2004 Decisions. Paper 827.
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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 03-3547


                                 JOHNNIE E. GREEN,
                                          Appellant

                                           v.

                              JOSEPH W. WESTPHAL*,
                              Acting Secretary of the Army


                     Appeal from the United States District Court
                              for the District of New Jersey
                              (D.C. Civil No. 01-cv-02180)
                     District Judge: Honorable Anne E. Thompson


                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 13, 2004

               Before: RENDELL, COWEN and LAY**, Circuit Judges.

                                (Filed: April 15, 2004)




*At the time Green filed his complaint, the Acting Secretary of the Army was the
Honorable Joseph W. Westphal. When the Third Circuit initially heard this case in 2002,
the Secretary of the Army was the Honorable Thomas E. W hite. Currently, the Honorable
Les Brownlee serves as Acting Secretary of the Army. He is therefore substituted as a
party pursuant to Fed. R. App. P. 43(c).

**Honorable Donald P. Lay, Senior Circuit Judge for the Eighth Circuit, sitting by
designation.
                               OPINION OF THE COURT




LAY, Circuit Judge.

      Johnnie E. Green appeals from the order of the district court granting summary

judgment in favor of the Secretary of the Army (“the Secretary”) on Green’s claims for

relief under the Administrative Procedure Act (“APA”), 5 U.S.C. § 702, and the Privacy

Act, 5 U.S.C. § 552a. We will affirm.




                                      I. Background

      The facts of this case are fully provided in our prior opinion, Green v. W hite, 319

F.3d 560 (3d Cir. 2003). We provide only a brief summary here. Green was discharged

from the Army on July 31, 1950, with an “undesirable” discharge. In 1981, Green

applied to the Army Discharge Review Board (“ADRB”) to have his discharge upgraded

from “undesirable” to “honorable.” The ADRB denied his application, and its decision

was upheld by the Army Board for Correction of M ilitary Records (“ABCMR”) in 1982.

In 1999, Green filed another petition with the ABCMR for review of his discharge,

alleging his discharge may have been motivated in part by racism. On October 19, 2000,

the ABCMR denied Green’s petition on the merits.

      Green then filed suit against the Secretary in district court, claiming, inter alia, that



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the ABCMR’s decision was arbitrary and capricious and subject to review under the

APA. The district court initially dismissed Green’s suit on statute of limitations grounds,

but we reversed and remanded. On remand, the district court consolidated Green’s APA

case with a companion suit brought by Green under the Privacy Act. On June 26, 2003,

the district court granted summary judgment in favor of the Secretary, concluding the

ABCMR’s decision was reasonable and logical and Green’s Privacy Act claim was an

impermissible collateral attack on the ABCMR’s decision.




                                        II. Discussion

APA Claim

       On appeal, Green challenges the district court’s conclusion that the ABCMR

reasonably denied his request for an upgrade of his discharge. Green’s primary

contentions are that his discharge was erroneously labeled as an undesirable discharge

and was not conducted in accordance with Army regulations. The ABCMR’s decision is

subject to judicial review and can be set aside only if it is arbitrary, capricious, or not

supported by substantial evidence. See Chappell v. Wallace, 462 U.S. 296, 303 (1983);

see also 5 U.S.C. § 706. There is a strong presumption that the ABCMR has discharged

its duty faithfully. Neal v. Sec’y of the Navy and Commandant of the Marine Corps, 639

F.2d 1029, 1037 (3d Cir. 1981).

       After reviewing the record in this case, we conclude there is substantial evidence



                                               3
to support the ABCMR’s decision that Green was discharged under Army Regulation

615-368 for unfitness for repeatedly committing petty offenses not warranting trial by

court-martial. The record shows Green was involved in several fights while enlisted in

the Army, was late on numerous occasions for reveille, was arrested off-post for drunk

and disorderly conduct, was AW OL for two days, and was considered by his First

Sergeant to have a poor work ethic. We consider these facts sufficient to overcome

Green’s unsupported allegations that he was actually discharged under a different

regulation. Furthermore, Green’s allegations of racial bias and improper and erroneous

discharge procedures were not supported by any other evidence. Therefore, the ABCMR

acted reasonably in concluding that Green failed to overcome the presumption that his

discharge was accomplished in compliance with applicable Army regulations. We thus

conclude the ABCM R did not act arbitrarily and capriciously in refusing to upgrade

Green’s discharge from undesirable to honorable.




Privacy Act Claim

       On appeal, the Secretary argues Green’s Privacy Act claim is barred by the statute

of limitations. We agree. An action to enforce rights under the Privacy Act must be

brought “within two years from the date on which the cause of action arises.” 5 U.S.C.

§ 552a(g)(5). A cause of action arises under the Privacy Act when the individual knows

or has reason to know of the alleged error in the individual’s record and the individual is



                                             4
harmed by the alleged error. See Diliberti v. United States, 817 F.2d 1259, 1262 (7th Cir.

1987); Bergman v. United States, 751 F.2d 314, 316 (10th Cir. 1984). Green knew of the

alleged error in his record in 1981 when he first sought to have his discharge upgraded

from undesirable to honorable. Green was also harmed by the alleged error in 1981 when

he was denied medical treatment from the Department of Veterans Affairs hospital

because he did not have an honorable discharge. On this basis, we conclude Green’s

Privacy Act claim arose in 1981. Because Green did not file suit until December of 2001,

his claim is barred by the Privacy Act’s two-year statute of limitations.




                                      III. Conclusion

       For the foregoing reasons, we will affirm the order of the district court.




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