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R.R. v. DEPARTMENT OF THE ARMY

January 15, 1980

R.R., Plaintiff,
v.
DEPARTMENT OF the ARMY, Defendant.



The opinion of the court was delivered by: GESELL

MEMORANDUM AND ORDER

Plaintiff, *fn1" a former serviceman discharged in 1951 for psychiatric reasons, brings this action to correct alleged substantive errors in his Army medical records. He seeks not only correction of the Army's records but also damages allegedly attributable to the Army's failure to amend them. Specifically, he claims he has been damaged by the refusal of the Veterans Administration ("VA"), in reliance on Army records, to award him full benefits to which he believes he is entitled, and which he has sought from the VA in nine separate proceedings over the last 28 years. *fn2" The Court has jurisdiction both under the Privacy Act, 5 U.S.C. § 552a(g)(1) (1976), and the Administrative Procedure Act, 5 U.S.C. §§ 701-06 (1976).

 In prior proceedings before the Army Privacy Review Board ("APRB") and the Army Board for the Correction of Military Records ("ABCMR"), plaintiff has suggested but been denied specific amendments, deletions and substitutions in his Army records, all of which were designed to correct the particular documentation on which the VA apparently largely based its eligibility determinations. The matter is now finally before the Court on cross-motions for summary judgment. The issues have been fully briefed and argued, and an extensive administrative record submitted. No matters of material fact are in dispute.

 I.

 The essential uncontested facts are not complicated. In 1951, plaintiff, who was born in Puerto Rico and had learned to speak halting English, served four months in the United States Army. *fn3" Before entering the service, he completed a medical history in which he claimed no past psychiatric treatment or hospitalization. No psychiatric defect was noted at his entrance examination. In February, 1951, plaintiff injured his left knee and was hospitalized in the orthopedic department of an Army hospital. When hospital staff could find no organic cause for his apparent knee pain, they transferred him to a psychiatric ward for observation. He remained there under supervision of psychiatric personnel until his discharge from the service in May. Plaintiff's treating psychiatrist, Major Hladky, was also a member of the medical board that formally recommended his discharge. Dr. Hladky's recommendation was that plaintiff be discharged by reason of a pre-existing mental condition, I.e., chronic schizophrenia, that was neither caused nor aggravated by his tenure in service. *fn4" This conclusion was in effect adopted by the medical board. *fn5"

 In diagnosing plaintiff's mental condition, Dr. Hladky relied on observations of the patient's behavior and on information about his social history obtained by questioning plaintiff through translators during his hospitalization. Considerable biographic detail supplied by plaintiff supported the medical conclusion that his mental disorder originated and flourished prior to his induction. Specifically plaintiff asserted through an interpreter that he had quit school in third grade to stay home with his mother, that he had always stayed with her, that he received psychiatric treatment as a child in Puerto Rico, that he had no history of gainful employment and no English language ability, and that his obvious stutter was a lifelong speech defect. *fn6"

 New evidence obtained over a period of many years effectively negates this social history. From employment records, Social Security records, letters from school and mental health administrators in Puerto Rico, and the sworn testimony of plaintiff's family and acquaintances, a different picture has emerged. According to this subsequent data which is not essentially disputed by defendant, plaintiff graduated from sixth grade, he was in Chicago at the time of his induction examination while his parents resided in New York, he had an extensive work history from the time he left school until induction was imminent, he was never treated for mental disorder while in Puerto Rico, he had a modest English language ability at the time of induction, and he suffered from no speech impediment prior to January 11, 1951. *fn7" As this new evidence was added to plaintiff's official files, no deletions or other changes were made in the 1951 medical records, which still contain the original patient history relied on by Dr. Hladky.

 Plaintiff petitioned the ABCMR in 1974, seeking to correct his medical record to reflect a service-related mental condition. The matter was referred to the Surgeon General of the Army for a medical opinion. Although the Surgeon General questioned the reliability of the original patient history and concluded that under present standards plaintiff's condition would be considered service-related, the ABCMR ultimately refused to correct the records, citing Inter alia the "more persuasive" original findings and the numerous prior occasions on which the VA had denied plaintiff's claim of service-relatedness. *fn8" Plaintiff's appeal to the APRB, for amendments to eliminate inaccuracies in his 1951 records, was likewise unsuccessful. The newly developed information had been added to plaintiff's Army records, and APRB concluded that the original records accurately showed what had happened at the time. In addition, the Privacy Board held that corrections of errors in medical judgment were not appropriate under the Privacy Act. *fn9"

 During this same period, plaintiff's counsel contacted Dr. Hladky, now in private practice, and questioned him in some detail on the extent to which his 1951 diagnosis might have been altered had he known plaintiff's true social history. While understandably reluctant to fix a time certain for the origin of plaintiff's schizophrenic condition, Dr. Hladky ventured the opinion that the illness was in all probability aggravated during, though not caused by, military service. *fn10" Dr. Hladky's revised judgment was added to the official military record, along with the Surgeon General's 1976 opinion. In addition, plaintiff's records were expanded to include the opinion of an independent medical expert who examined the entire record and concluded Inter alia that plaintiff's condition "became more manifest during military service." *fn11"

 II.

 It is settled that this Court cannot review factual or legal decisions reached by the Board of Veterans Appeals in the course of administering the benefits legislation. See 38 U.S.C. § 211(a) (1976); H.R.Rep. No. 1166, 91st Cong., 2d Sess., 8-11 Reprinted in (1970) U.S.Code Cong. & Admin.News, pp. 3723, 3729-31. See generally Johnson v. Robison, 415 U.S. 361, 367-73, 94 S. Ct. 1160, 39 L. Ed. 2d 389 (1974). Neither the professional judgments nor the financial resources of the VA are at issue here. Instead, plaintiff attacks the Army for allowing discredited facts and judgments about his condition to persist in the official record. He argues that under the Privacy Act he has a right to declaratory relief ordering the revision or expungement of substantive errors in his Army records. See 5 U.S.C. § 552a(g)(1)(A), (C) (1976). Moreover, he claims a right to damages under that Act because the Army's refusal to correct its records was knowing and intentional, and the flawed records have consistently prejudiced fairness in decisionmaking at the VA. See 5 U.S.C. § 552a(g)(4) (1976). Alternatively, plaintiff claims that the ABCMR acted unlawfully in its arbitrary and capricious refusal to adjust his records, and that the Army must award him, Nunc pro tunc, the benefits he would have enjoyed had his mental disorder not been mischaracterized in the first instance.

 Under the Privacy Act, each government agency compiling records on individuals is obligated to ensure that the information it retains is accurate, relevant, timely and complete. 5 U.S.C. § 552a(e)(5) (1976). Accuracy of government-recorded personnel information is particularly important in our complex and bureaucratically-interrelated society, where an individual's rights and benefits may well be influenced or determined by what some government agency has to say about him. The prejudice resulting from inaccuracy may affect determinations reached by third parties, public or private, as well as those made by the recordkeeping agency. Of course, no individual is entitled to shape or color such information according to his own whims or preferences. On occasion accuracy is achieved only by allowing a disputed question of fact or judgment previously recorded to remain in the record, qualified by subsequent data. On the other hand, it may be necessary to eliminate clear mistakes of fact or irresponsible judgment from an individual's file so as not to prejudice prospects for a fair determination of his rights or benefits.

 The conclusion that Congress both authorized actions for expungement or revision and intended that such actions apply to errors of judgment or opinion is supported by the relevant case law. Even beyond the domain of the Privacy Act, it is well settled that courts in their equitable discretion may order inaccuracies removed from government records where necessary to vindicate rights secured by statute or by the Constitution. See Chastain v. Kelley, 167 U.S.App.D.C. 11, 14-15, 510 F.2d 1232, 1235-36 (D.C.Cir. 1975); Paton v. LaPrade, 524 F.2d 862, 868 (3d Cir. 1975). That the Privacy Act contemplates such expungement and not merely redress by supplement is fairly implicit in the decisions of this and other circuits. See Schuler v. Department of State, -- - U.S.App.D.C. -- -, at -- - - -- -, -- - F.2d -- , at -- - -- (D.C.Cir. 1979), Vacated on other grounds (Jan. 9, 1980); White v. Civil Service Comm., 191 U.S.App.D.C. 190, 589 F.2d 713 (D.C.Cir. 1978), Cert. denied, 444 U.S. 830, 100 S. Ct. 58, 62 L. Ed. 2d 39 (1979); Churchwell v. United States, 545 F.2d 59 (8th Cir. 1976). The proposition that judgmental or evaluative matters are not beyond the purview of the Privacy Act has been tacitly accepted in some instances, E. g., White v. Civil Service Comm., supra, and expressly ...


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