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July 18, 1985

DEPARTMENT OF DEFENSE, et al., Defendants

The opinion of the court was delivered by: SMITH, JR.

 SMITH, Jr., United States District Judge.

 Plaintiff James P. Benvenuti originally brought 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. In an earlier opinion, the Court dismissed all of plaintiff's damages claims, and remanded to the Army Board for Correction of Military Records (Board) for further inquiry before proceeding with plaintiff's claims for declaratory and injunctive relief. Benvenuti v. Department of Defense, 587 F. Supp. 348 (D.D.C. 1984). The Board has completed its inquiry and presently before the Court is defendants' renewed motion for summary judgment.

 The facts of this case are set out in detail in the earlier opinion of the Court. Id., slip op. at 2-4. For present purposes, however, the relevant facts are that plaintiff was a physician formerly serving on active duty with the Army Medical Corps. Beginning in August 1978, plaintiff began a series of 3 military assignments, each of which led to plaintiff's performance being questioned followed by reassignment. Finally, in February 1981, plaintiff was reassigned to nonclinical duties. Plaintiff's performance from May 1980 to February 1981 is the subject of two Officer Evaluation Reports (OER's) which are at issue in this case.

 On February 23, 1981, plaintiff's commanding officer at Fort Belvoir 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 . . ." (Defendants' Exhibit (DX) D at 86). *fn1"

 On March 13, 1981, plaintiff was ordered to undergo a complete psychiatric evaluation at the National Naval Medical Center (NNMC) in Bethesda, Maryland. 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). Plaintiff was discharged from NNMC on August 12.

 In June, 1981, an Army Promotion Board, on the basis of the OER's 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, Georgia. Plaintiff was admitted to EAMC on September 16. (DX G). On October 24, the EAMC Medical 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 OER's; his appeal was denied by an Army Special Appeals Board on August 9. On August 16, 1982, plaintiff filed an application with the Board for review of all these matters. The Board denied his application without a hearing on March 30, 1983. (DX A). On November 11, 1982, plaintiff was released from the Army.

 As previously noted, the only remaining claims are plaintiff's claims for declaratory and injunctive relief. These claims basically arise from the circumstances surrounding plaintiff's 1981 hospitalizations. Plaintiff seeks a declaration that the hospitalizations violated both Army Regulation 600-20, and the Due Process Clause of the Fifth Amendment, and that certain administrative actions, including preparation of two OER's, and promotion and medical special pay determinations, were improperly affected or "tainted" by the illegal hospitalizations. Plaintiff asks the Court for injunctive relief with respect to expungement of his records, restoration to active duty status, and restoration of medical credentials and special pay.

 In remanding these claims to the Board, the Court was specifically "interested in 'clarification or further inquiry' with respect to Army regulations governing medical evaluation and hospitalization of personnel on active duty," Benvenuti, at 356, including a "review of all possibly pertinent regulations" and a determination of "under what circumstances and for what reasons a commander may direct a subordinate to undergo medical evaluation." Id. at 357. Further, the Court ordered the Board to "consider plaintiff's constitutional challenge should it remain satisfied that the hospitalizations did not violate any regulations." Id. The Court suggested that "the Board should solicit advice from the Judge Advocate General on the due process claims advanced by plaintiff." Id.

 On October 31, 1984, the Board issued a "Memorandum of Consideration" which, after addressing the concerns of the Court, found that the Army did not violate its own regulations nor infringe upon plaintiff's constitutional rights when it ordered him to submit to psychiatric evaluation. Administrative Record (A.R.) at 7-9. These determinations were in large part based on opinions from the Office of the Judge Advocate General (OTJAG) and the Office of the Surgeon General (OSG) which were incorporated by reference into the Board's decision. A.R. at 2. The OTJAG opinion, while not performing a fact finding function, presented a legal analysis of applicable Army regulations and outlined varying situations in which Army regulations permit the hospitalization of a serviceman.

 The Board relied upon the OTJAG analysis and, in alternative findings, determined that there was ample justification, pursuant to military regulations, for hospitalizing plaintiff. First, the Board found that there was no evidence that plaintiff did not consent to the hospitalizations or contest the various medical procedures, pointing specifically to the absence of any record of complaint filed pursuant to grievance procedures provided by the Joint Commission on Hospital Accreditation Standards. In view of this finding, the Board concluded that plaintiff had implicitly consented to the hospitalizations and no military regulations had been violated.

 Alternatively, the OTJAG opinion concluded that, even if plaintiff did not consent to the various hospitalizations, Army regulations authorize a commander to "order the hospitalization of any member of his command or order him to submit to a medical examination when indicated," without medical board approval, even "if such hospitalization or examination is not 'necessary to preserve his life, alleviate undue suffering, or protect or maintain the health of others.'" See paras. 5-29, Army Regulation 600-20, A.R. at 20. The OTJAG opinion concluded that Army regulations permit psychiatric evaluation and hospitalization to be summarily ordered for determining a soldier's fitness for duty, so long as the individual was not confined to a "closed ward," defined as wards which patients are not permitted to leave without escort. A.R. at 21. The Board found that plaintiff's hospitalizations had been ordered by his commanding officer for determining his fitness for duty and that there was ample foundation to believe that plaintiff had a mental illness ...

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