Chambers v. Esper

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JAMES S. CHAMBERS,
Plaintiff,
v.

Civil Case No. 19-133 (RJL)

MARK T. ESPER, and
DEPARTMENT OF THE ARMY

Defendants.

MEMORANDUM OPINION

(July 2% 2021) [Dkt. ## 14, 17]

New Nee Nee Nee ree ne Nee Nee ee” ee”

Plaintiff James S. Chambers (“plaintiff’ or “Chambers”), an Army veteran
honorably discharged in 1971 after deployment to Panama and Vietnam, brings suit against
Mark T. Esper, in his official capacity as Secretary of the Army, and against the Department
of the Army (together “defendants” or “the Army”), challenging a U.S. Army Board for
the Correction of Military Records’ (“ABCMR” or “Board”) denial of his application for
recharacterization of his honorable discharge from the Army as being based upon a medical
disability. Plaintiff seeks a reversal of ABCMR’s decision as arbitrary, capricious, not in
accordance with law, in violation of the Administrative Procedure Act (“APA”), 5 U.S.C.
§ 706, and in violation of the parties’ Joint Stipulation of Settlement and Dismissal.
Plaintiff asks this Court to remand the matter to the ABCMR with instructions to comply
with the parties’ stipulation.. See Compl. § 18. Before this Court are the parties’ Cross-

Motions for Summary Judgment. See Pl.’s Motion for Summary Judgment [Dkt. #14]
(“Pl.’s Mot.”); Defs.” Cross-Motion for Summary Judgment [Dkt. # 17] (“Defs.’ Mot.”).
For the following reasons, defendants’ motion for summary judgment [Dkt. # 17] is

GRANTED, and plaintiff's motion [Dkt. # 14] is DENIED.

BACKGROUND
I. Procedural History

Plaintiff joined the Army as an active duty Private on July 26, 1967. Def.’s Mot. at
7. On January 12, 1968, after completing Basic Combat Training and Advanced Individual
Training, he was assigned to the Panama Canal Zone, where he served until July 1969. Id.
at 8-11. Plaintiff was next assigned to Fort Bliss, Texas, where we awaited reassignment
to Vietnam. /d. at 11. Plaintiff was deployed to Vietnam on October 30, 1969. Jd. Plaintiff
departed Vietnam on July 14, 1970, just prior to the expiration of his three-year enlistment
contract, and was transferred to Fort Lewis, Washington, for out-processing and separation
from active duty. Jd. at 13. At the time of his separation from the Army, plaintiff had been
promoted to the noncommissioned officer rank of Sergeant (E-5).

During his three years of active duty service, plaintiff sought and received medical
and psychiatric care on multiple occasions. First, on October 27, 1967, during his
Advanced Individual Training at Fort Bliss, plaintiff was hospitalized for possible
appendicitis, found medically qualified for duty, and discharged with no limitations. Def.’s
Mot. at 8 (AR 10, 647-648). Second, on June 12, 1968, while assigned to the Panama
Canal Zone, plaintiff was hospitalized at Coco Solo Hospital in Panama after being

involved in a vehicle accident where he jumped from the driver’s seat of a jeep while it
was moving. /d. at 12 (AR 10, 136). The subsequent psychiatric consultation resulted in
a final diagnosis of “transient stress reaction, manifest by depression,” for which the
psychiatrist determined that no follow-up appointment was necessary. /d. at 13. Third, on
January 11, 1969, while still assigned to the Panama Canal Zone, plaintiff was again
hospitalized at the Coco Solo Hospital with a headache, chest pain, and complaints that he
was “overworked in his job as an artillery mechanic, and he was unhappy with his
assignment in the Panama Canal Zone.” AR 11, 137. A psychiatric evaluation found that
plaintiff “was immature and that his symptoms were due to transient situational stress,”
and the psychiatrist diagnosed plaintiff with “personality pattern disturbance, transient,
situational,” and prescribed Valium. Jd.

Back at Fort Bliss, on October 11, 1969, medical providers evaluated plaintiff for
headaches and noted that he was “quite hostile and anxious, and that he was afraid he was
going to tear up the barracks.” AR 12, 662. Plaintiff was prescribed medication to reduce
anxiety, but the examination did not uncover any abnormalities. Jd. Plaintiff returned to
military duties and was next deployed to Vietnam on October 30, 1969. Defs. Mot. at 11.
Six months into that tour, plaintiff was referred to the Neurological Psychiatric Clinic at
the 71‘ Evacuation Hospital in Vietnam with agitation, nervousness, and “probable
situational anxiety,” which resulted in a diagnosis of situational anxiety and a
recommendation that Chambers “return to duty.” AR 12, 697.

Chambers continued his service in Vietnam through the remaining duration of his
enlistment contract. AR 13. He underwent a medical evaluation as required for all military

personnel prior to separation, which “did not identify any physical or mental conditions

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that would render him unfit or medically unqualified,” underwent other routine separation
procedures, and eventually was termed “qualified for separation” and was voluntarily
separated with an Honorable characterization of service on July 27, 1970. AR 13, 57, 223-
24. Throughout his three years of active service, Chambers was regularly evaluated as
“Excellent” for both conduct and efficiency, was regularly promoted to higher rank, and
left the Army at the rank of Sergeant. See generally AR.

Eleven years later, Chambers underwent a medical examination for the purpose of
voluntarily enlisting in the New York Army National Guard. AR 13, 225-26. The
psychiatric evaluation component of the medical exam was normal, indicating no
psychiatric issues or diagnoses. AR 226. Chambers was found to be medically fit for any
military assignment and enlisted in the National Guard as a Unit Clerk. AR 13, 218-221.
The following year, Chambers re-enlisted as a Sergeant in the California Army National
Guard. AR 14, 228-30. He was honorably discharged on October 31, 1983.

In 1987, Chambers was diagnosed with Post Traumatic Stress Disorder (“PTSD”)
and “is currently rated as 100 percent disable[d] by the VA for PTSD resulting from his
Vietnam experiences.” AR 6-7. In 1999, nineteen years after his honorable discharge from
active service in the Army, Chambers applied to ABCMR requesting correction of his
military records to reflect his 1970 separation from the Army as medical disability
retirement due to PTSD. On March 16, 2000, the ABMCR “unanimously concluded that
there was insufficient evidence in the record to grant Chambers a medical disability
retirement and that the evidence presented did not demonstrate the existence of a probable

error or injustice.” Defs. Mot. at 18. After Chambers unsuccessfully requested

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reconsideration, he challenged that decision in the United States Court of Federal Claims,
arguing that the Board’s decision was arbitrary and capricious under the APA. Jd. The
court upheld. the Board’s decision, finding that the “ABCMR reviewed the record and
rendered a rational decision that plaintiff was fit for duty at the time of his separation” and
therefore the decision was not arbitrary and capricious. Chambers v. United States, No.
03-1767-C (Fed. Cl. July 12, 2004). In 2006, the United States Court of Appeals for the
Federal Circuit affirmed. Chambers v. United States, 417 F.3d 1218, 1227-28 (Fed. Cir.
2005). The United States Supreme Court denied certiorari on December 5, 2005.

After filing several additional motions with the ABCMR seeking reconsideration of
its 2000 denial of his request for correction of his military records, Chambers filed suit in
this Court in 2015. See AR 344-45. Chambers challenged the Army’s one-year limitation
period for filing motions for reconsideration as arbitrary, capricious, and contrary to law.
That case, however, was dismissed pursuant to a joint stipulation of settlement and
dismissal, under which the ABCMR agreed to substantively reconsider Chambers’
“request for disability retirement due to Post-Traumatic Stress Disorder.” See id.

On remand to the ABCMR, Chambers provided additional supporting
documentation for his request that his separation from the Army in 1970 be reclassified as
a medical disability retirement due to PTSD: (1) a 2006 statement by his mother, AR 15-
16, 132-35; and (2) a “forensic psychiatric report” compiled in September 2007 by
psychiatrist Dr. Kaye. The ABCMR also sought and received an advisory opinion from
the Army’s Office of The Surgeon General (““OTSG”). The Board voted to grant partial

relief to Chambers by referring his case to the Army’s OTSG to determine if he should

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have been referred to the disability evaluation system at the time of his separation in 1970.
AR 19, 65-90. The MEB physicians reviewed the entire record and issued a memorandum
concluding that Chambers would not have qualified for an MEB at the time of his
separation because “he was not sufficiently impaired from performing his duties to warrant
a MEB.” AR 29, 96-97.

After Chambers filed the instant lawsuit in 2019, the ABCMR considered his
request for reclassification of his 1970 separation from the Army as a medical disability
retirement, and in November 2019 voted unanimously to deny plaintiff's application. Both
parties thereafter filed for summary judgment in this case.

IL. Statutory Scheme

Under 10 U.S.C. § 1201 et seg., Congress established a statutory framework under
which the Department of Defense determines whether a member of the military is
medically fit for duty and, if not, whether that member should receive a disability rating
and compensation for the medically unfitting condition. See Chatman v. DOD, 270 F.
Supp. 3d 184, 185 (D.D.C. 2017) (citing 10 U.S.C. §§ 1201-22, 1552-59).

The Army regulations in effect at the time of Chambers’ discharge in 1970, rather
than current regulations, must guide my analysis. Under DoD’s process in 1970, a soldier
is first referred to the medical evaluation board (““MEB”) for evaluation if the soldier has a
medical condition “which may render [him] unfit for further military service and which
fall below” required medical fitness standards. Army Regulation (“Army Reg.”’) 40-501,
{ 3-1. But “[p]lossession of one or more of [the medical conditions] does not mean

automatic retirement or separation from the Service.” Jd. § 3-4. Instead, the MEB

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evaluates whether the soldier meets the retention standard criteria in Army Regulation 40-
501. Id.

If the soldier does not meet the retention standard, the MEB refers the soldier to a
physical evaluation board (“PEB”). Jd. { 3-4; Army Reg. 635-40, §] 4-10, 4-13 (Sept. 1,
1990). The PEB then “consider[s] the results of the MEB, as well as the requirements of
the soldier’s [military occupational specialty],! in determining fitness” or unfitness. Army
Reg. 40-501, 4 3-4; Army Reg. 635-40, § 4-17. In other words, the PEB conducts “a more
thorough investigation into the nature and permanency of the servicemember’s condition
and makes independent findings as to whether the servicemember is fit for duty and
qualifies for disability retirement.” Fulbright v. McHugh, 67 F. Supp. 3d 81, 85-86 (D.D.C.
2014). A case so referred begins with an informal evaluation and decision by the PEB.
Army Reg. 635-40, § 4-20. Thereafter, a soldier may either concur with the informal PEB
decision or demand a formal hearing and present rebuttal findings and recommendations.
Id. § 4-21.

ANALYSIS
I. Standard of Review

“Summary judgment is an appropriate procedure for resolving a challenge to a

federal agency's administrative decision when review is based upon the administrative

record,’” as it is here. Bloch v. Powell, 227 F. Supp. 2d 25, 31 (D.D.C. 2002) (quoting

' A “military occupational specialty” (“MOS”) identifies “a group of duty positions that
require closely related skills” “without regard to levels of skills.” Army Reg. 600-1, § 6-4.
Fund for Animals v. Babbitt, 903 F. Supp. 96, 105 (D.D.C. 1995)). In such cases, the
district court “sits as an appellate tribunal” and “the entire case ... is a question of law.”
Am. Biosci., Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (quotations omitted).
Courts will thus defer to the agency’s “findings of fact if they are supported by substantial
evidence and the [Agency’s] other findings and conclusions if they are not arbitrary,
capricious, an abuse of discretion, or contrary to law.” Montgomery Kone, Inc. v. Sec’y of
Labor, 234 F.3d 720, 722 (D.C. Cir. 2000) (quotations and citation omitted); see also 5
U.S.C. § 706(2)(A).

As such, a court must generally defer to an agency’s reasonable interpretation of the
facts even if another interpretation would be plausible on the court’s own review of the
record. See Fla. Gas Transmission Co. v. FERC, 604 F.3d 636, 645 (D.C. Cir. 2010)
(“When reviewing for substantial evidence [the Court] does not ask whether record
evidence could support the petitioner’s view of the issue, but whether it supports the
[agency’s] ultimate decision.”) (citation omitted); Rossello ex rel. Rossello v. Astrue, 529
F.3d 1181, 1185 (D.C. Cir. 2008) (“Substantial-evidence review 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.’”) (quoting Pierce v. Underwood, 487 US.

552, 565 (1988)).2

* “The arbitrary and capricious standard of § 706(2)(A) is a ‘catchall’ that generally
subsumes the ‘substantial evidence’ standard of § 706(2)(E).” Schmidt v. Spencer, 319 F.
Supp. 3d 386, 391 n.3 (D.D.C. 2018) (citing Ass'n of Data Processing Serv. Organizations,
Inc. v. Bd. of Governors of Fed. Reserve Sys., 745 F.2d 677, 683-84 (D.C. Cir. 1984)
(“When the arbitrary or capricious standard is performing that function of assuring factual
support, there is no substantive difference between what it requires and what would be

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Our Circuit accords heightened deference when reviewing decisions by military
review boards, including the ABCMR. See, e.g., Roberts v. United States, 741 F.3d 152,
158 (D.C. Cir. 2014) (quoting Kreis v. Sec'y of the Air Force, 866 F.2d 1508, 1514 (D.C.
Cir. 1989)); Schmidt, 319 F. Supp. 3d at 391; Chamness v. McHugh, 814 F. Supp. 2d 7, 13
(D.D.C. 2011); Escobedo v. Green, 602 F. Supp. 2d 244, 248 (D.D.C. 2009). A reviewing
court will therefore “uphold a decision of less than ideal clarity if the agency’s path may
reasonably be discerned.” Dickson v. Sec’y of Def., 68 F.3d 1396, 1404 (D.C. Cir. 1995)
(quoting Bowman Transp. Inc. v. Arkansas-best Motor Freight Sys., 419 U.S. 281, 286

(1974)).

I. The Board’s Decision to Deny Plaintiff’s Request for Reclassification was

Neither Arbitrary and Capricious nor Unreasonable.

In its original 2000 decision denying plaintiff's request for reclassification, the
Board correctly presumed, pursuant to the Army regulations in effect in 1970, that
Chambers was fit at the time of his separation from the Army because he was, at that time,
effectively performing his military duties. The United States Court of Appeals for the
Federal Circuit affirmed the Court of Federal Claims granting judgment on the
administrative record in favor of the United States, noting that

in 1970, [Army Regulation] 40-501 provided that “transient personality

disruptions of a nonpsychotic nature and situational maladjustments due to
acute or special stress do not render an individual unfit.” Chambers' pre-

required by the substantial evidence test, since it is impossible to conceive of a
‘nonarbitrary’ factual judgment supported only by evidence that is not substantial in the
APA sense ....”); accord Safe Extensions, Inc. v. FAA, 509 F.3d 593, 604 (D.C. Cir. 2007)).

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discharge diagnoses—“transient stress reaction,” “transient situational
distress,” and “mild situational anxiety”—appear to fall squarely within the
boundaries of [Army Regulation] 40-501. The Board likewise did not err in
determining that Chambers' symptoms lacked the criteria for referral to a
Medical Examination Board set out in [Army Regulation] 40-
501, ie., “persistence or recurrence ... sufficient to require extended or
recurrent hospitalization, necessity for limitations of duty or duty in protected
environment or resulting in interference with effective military
performance.” Each of Chambers' three medical incidents was of short
duration and had no effect on the scope or performance of his military duties.
In sum, under the standards in existence in 1970, Chambers was fit for duty.
This is not to say that, in retrospect, Chambers’ symptoms appear unrelated
to PTSD. Indeed, the VA deemed Chambers' PTSD service-connected and,
ultimately, awarded him a 100 percent disability rating. Chambers, however,
cannot now complain that the Army failed to diagnose him in 1970 with a
psychological condition unknown until 1980.

Chambers, 417 F.3d at 1227-28. In its 2019 reconsideration of Chambers’ request,
the Board considered all of the evidence in the record, including the information
before it at the time of the 2000 decision as well as the new evidence submitted by
Chambers. Again, the Board unanimously concluded that because.Chambers was
never diagnosed with any psychiatric condition considered disqualifying in AR 40-
501, and always returned to successfully perform his military duties, the conclusion
that Chambers was not unfit at the time of separation was reasonable and supported
by the record. Defs. Mot. at 27; AR 3-26.

The Board also considered the new evidence presented, including medical
opinions submitted by Chambers’ forensic psychiatrist and the Government.
Plaintiff contends that the Board failed to address his four hospitalizations while
serving on active duty. Pl. ’s Br. at 13. However, the Board did specifically consider

Chambers’ hospitalizations and concluded that “the manifestation of any behavior

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health problems at or near the time of his separation... was so minimal that it
cannot be reasonably argued that the applicant was, at the time of his separation,

unfit for duty.” AR 26.

Plaintiff also claims that the Board did not adequately consider Chambers’
Thorazine prescription, which plaintiff and his forensic psychiatrist expert claim
indicates that the treating physician believed the patient had serious probable
psychotic reactions. P/.’s Br. at 13. Unfortunately for plaintiff, however, the Board
did explicitly consider Chambers’ Thorazine prescription, concluding that there is
“no evidence that [Plaintiff] was prescribe[d] medication for any condition other
than those condition cited in the records.” AR 27. Under the “unusually deferential”
approach of Kreis, 866 F.2d at 1514, the Board’s consideration of all relevant facts
and determination that any serious psychiatric condition would be noted in the
medical records from the time is reasonable.

The Board also expressly weighed the opinions of Dr. Kaye and the opinions
of the OTSG 2016 opinion. AR 27. The Board noted that Dr. Kaye’s opinion “tends
to minimize the fact that the applicant was able to successfully complete his
enlistment term; the fact that he did not require frequent behavioral health visits at
or near the time of his separation; and the fact that he successfully re-entered the
military in the 1980s.” AR 27. The Board noted that the 2016 OTSG opinion,
which concluded that Chambers should have been referred to a MEB at the time of

discharge, was premised on the incorrect finding that Chambers was “sent home

11
from theater,” which it finds to be “evidence that he was considered unfit for
continued combat duty.” AR 347. In fact, as the record makes clear, Chambers was
sent home from Vietnam in 1970 due to his expiring enlistment contract, and was
given “Excellent” performance ratings leading up to his separation. AR 27, 166.
Due to this “fatal flaw” in the OTSG advisory opinion’s reasoning, the Board
appropriately extended the opinion less credibility.

The Board reasonably assessed the strengths and weaknesses of the
competing medical opinions, considered all of the evidence presented, and
ultimately found the November 2016 report and findings from the Army MEB
doctors to be the most persuasive of the opinions provided. The ABCMR noted its
agreement with the assessment of the Army MEB doctors that Chambers, at the time
of his discharge, “did not exhibit a degree of impairment that would have warranted
a MEB in 1970.” AR 27.

Plaintiff also claims that the Board improperly considered his enlistment with
the National Guard as evidence of fitness. Pl.’s Br. 18-19. Not so. Plaintiff's
voluntary enlistment in the National Guard more than a decade after his 1970
separation, and successful completion of the medical assessments required for that
enlistment, are reasonable factors for the Board to consider as evidence of fitness
here. See Hall v. DOD, No. 19-cv-31441, 2021 U.S. Dist. LEXIS 21139, at *14
(D.D.C. Mar 17, 2021); AR 28 (stating that if Chambers’ PTSD was debilitating in

1981, the intake medical personal would have likely rejected him as unfit).

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Chambers has surely put forward a sympathetic case based on the difficult
duty he endured during his seven months in Vietnam. Indeed, the Board
acknowledged such and the VA later granted him a disability rating for PTSD. The
Board is accurate, however, to point out that the VA applies different standards for
assessing a disability claim than the Army applies to determine unfitness at the time
of separation. See AR 28, 32. In the final analysis, the Board in this case considered
all of the evidence presented to it and undertook a full substantive reconsideration
of Chambers’ request for reclassification and came to a reasoned decision. Their
decision was neither arbitrary and capricious, nor unreasonable, and must be upheld.

CONCLUSION

For all of the foregoing reasons, defendants’ Cross-Motion for Summary Judgment

[Dkt. #17] is GRANTED and plaintiff's Motion for Summary Judgment [Dkt. #14] is

DENIED. An order consistent with this decision accompanies this Memorandum Opinion.

Y

RICHARD J.&fON
United States District Judge

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