Rudo v. McHugh

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."

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 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).

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 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).

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 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).

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 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).

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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.

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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).

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 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).

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 ( "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.

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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.

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 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].

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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

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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).

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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.

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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.

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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.

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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

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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.

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 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

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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

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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.

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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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