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May 29, 1984

DEPARTMENT OF DEFENSE, et al., Defendant

The opinion of the court was delivered by: SMITH

 Plaintiff James P. Benvenuti brings this action for monetary, declaratory, and injunctive relief against the United States Department of Defense and Department of the Army, and against seven officers of the Army and Navy in their individual capacities. *fn1" Currently before the Court is defendants' motion to dismiss, or in the alternative, for summary judgment. *fn2"

 Plaintiff is a physician, formerly serving on active duty with the Army Medical Corps. From August 1978 to May 1980, plaintiff participated in a psychiatric residency program at Walter Reed Army Medical Center in Washington. During that period, the quality of plaintiff's performance was questioned, and on May 30, 1980, plaintiff was dismissed from the program (Defendants' Exhibit ("DX") N at 3). On May 31, plaintiff was reassigned to the Pediatrics Clinic at DeWitt Army Hospital, Fort Belvoir, Va. Once again, plaintiff's performance was drawn into question, and on November 2, he was reassigned to the Family Practice Clinic. In February 1981, plaintiff was relieved of his duties there and reassigned to non-clinical duties. Plaintiff's performance in this May 1980-February 1981 period is the subject of two Officer Evaluation Reports ("OERs")(DX G, B), which are at issue in this case.

 On February 23, 1981, plaintiff's commanding officer at Fort Belvoir, defendant Doane, ordered plaintiff to undergo psychiatric evaluation at the Fort Belvoir Community Mental Health Activity. After a series of psychological tests and interviews, plaintiff was certified as having "no disqualifying mental disease or condition sufficient to warrant disposition through medical/psychiatric channels. . . ." (DX D at 86).

 On March 13, 1981, defendant Doane ordered plaintiff to undergo a complete psychiatric evaluation at the National Naval Medical Center ("NNMC") in Bethesda, Md. On May 19, a NNMC Medical Board diagnosed plaintiff as suffering "borderline personality disorder," and recommended his administrative separation from active duty status (DX I at 14). On August 12, plaintiff was discharged from NNMC.

 Meanwhile, in June, 1981, an Army Promotion Board, on the basis of the OERs noted above, removed plaintiff from the lieutenant colonel promotion list (DX C). In July, the Commander at DeWitt Army Hospital recommended that plaintiff not receive Medical Special Pay, and that recommendation was accepted by the Surgeon General in August (DX E).

 On August 18, plaintiff was ordered to undergo further psychiatric evaluation at the Eisenhower Army Medical Center ("EAMC"), Fort Gordon, Ga. On August 25, this Court granted plaintiff's request for a temporary restraining order against the transfer, but on September 11, denied his motion for a preliminary injunction. Plaintiff was admitted to EAMC on September 16 (DX G).

 On October 24, an EAMC Medical Board issued its findings. The Board, noting that plaintiff had been "referred for evaluation because of inability to perform duties," diagnosed plaintiff as suffering a "paranoid personality disorder," and recommended that he be considered for administrative separation from active status (DX H at 3). Plaintiff was discharged from EAMC on November 16.

 In March 1982, plaintiff sought review of the adverse OERs; his appeal was denied by an Army Special Appeals Board on August 9. On March 1, defendant Barlow formally recommended that plaintiff be involuntarily released from active duty (DX D at 7-8). On August 13, the Army Active Duty Board accepted that recommendation, and plaintiff was released on November 11. Plaintiff's request for preliminary relief against that release was denied by both this Court and the Court of Appeals.

 On August 16, 1982, plaintiff filed an application with the Army Board for Correction of Military Records ("Board") for review of all these matters. The Board denied his application without a hearing on March 30, 1983 (DX A).

 Plaintiff in this action makes a number of challenges to these orders, principally concerning the legality of his assignments to NNMC and to EAMC for psychiatric evaluation. Plaintiff seeks damages for alleged constitutional and common law torts arising from the hospitalizations and preparation of the OERs, and declaratory and injunctive relief with respect to a number of administrative actions taken by defendants. Defendants challenge both the Court's jurisdiction over and justiciability of plaintiff's claims, and in addition urge that the military internal review process is dispositive of the case. Upon consideration, the Court concludes that the damages claims should be dismissed, but that the remaining claims raise issues that should be the subject of further evaluation by the Board.

 A. Monetary Relief: Constitutional and Common Law Tort Claims

 Plaintiff's tort claims, as noted, center on his two "hospitalizations," and on the contents of the OERs. Plaintiff claims that he was "unconstitutionally deprived of liberty" in that he was "committed" to NNMC and EAMC without first receiving procedural protections guaranteed by the Due Process Clause. *fn3" In addition, plaintiff claims that the hospitalizations constituted the common law tort of "false imprisonment" on the part of five of the named defendants. Plaintiff also alleges that defendants Andreasen, Tregubov, and Barlow "libeled" him in preparing the OERs. Plaintiff's prayer for relief makes no distinctions among the defendants; he urges that the Court find the agency and individual defendants ...

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