The opinion of the court was delivered by: SPORKIN
STANLEY SPORKIN, UNITED STATES DISTRICT JUDGE
Plaintiff appeals a final decision of the Secretary of the Army which upheld the imposition of a fine and the dismissal of the plaintiff, Sergeant Mark B. Lewis from Officer Candidate School (OCS) as the result of an alleged drunk driving incident that occurred on May 8, 1982. For the reasons outlined, I find that decision was arbitrary and capricious and was not supported by substantial evidence. Therefore, the decision of the Secretary is reversed and an Order shall be entered granting plaintiff relief.
Plaintiff enlisted in the United States Army Reserve in November 1981, with an understanding that he would be sent to Officer Candidate School. His OCS class commenced on March 14, 1982 at Fort Benning, Georgia. On May 8, 1982, at approximately 3:30 in the afternoon, an off-duty military policeman at Fort Benning suspected plaintiff of driving under the influence of alcohol; he was apprehended and taken to the hospital for a blood alcohol test. Before the test could be taken, though, plaintiff departed from the hospital. He was later picked up by the military police and charged with the offense of driving under the influence of alcohol.
In lieu of a court-martial, plaintiff was induced to waive his right to demand a formal trial and instead agreed to have his case disposed of under 10 U.S.C. § 815, which is the "minor violation" or "non-judicial punishment" ("NJP") route. According to the government's brief:
Non-judicial punishment is used by a commanding officer under his authority to discipline members of his command for minor acts of misconduct without resort to court-martial. The legal basis for this authority is found in Article 15, Uniform Code of Military Justice (UCMJ); therefore, non-judicial punishment is referred to as "an Article 15." Article 15 of the U.C.M.J. is codified at 10 U.S.C. § 815. A soldier has the right to demand trial by court-martial and not accept the Article 15; plaintiff did not do that, but rather chose to accept non-judicial punishment but decided to appeal the penalty assessed against him. (Emphasis supplied.)
Defendants' Statement of Material Facts as to Which There is No Genuine Issue at 3, fn. 1.
Pursuant to Article 15, the commanding officer possesses only limited disciplinary authority -- he can impose only "minor" punishments. See generally 10 U.S.C. § 815 (b) (2). In fact, Article 15 places quite a low ceiling on the penalties that can be meted out as NJP -- dismissal from OCS is not within the disciplinary authority accorded the commanding officer by Article 15.
Sergeant Lewis, by deciding to accept punishment through the Article 15 procedure, gave up important procedural rights -- specifically his right to a court martial and the formal procedural protections attendant upon that adversary process. Among the rights he gave up was the right to a hearing presided over by a carefully selected panel of impartial judges, the right to an appointed military counsel, (selected by the plaintiff if such a lawyer is "reasonably available"), or the right to retain civilian counsel at his own expense. In addition, Sergeant Lewis gave up his right to confront and cross examine his accusers. See generally Arts. 16, 25, 27(b), 27(c), 38(b), UCMJ, 10 U.S.C. §§ 816, 825, 825(b), 827(c), 838(b). In return for voluntarily relinquishing his due process rights, Sergeant Lewis was led to believe that he was at risk of receiving only a minor punishment under Article 15 -- for what all parties agreed at this point in time was at worst a minor offense.
Sergeant Lewis justifiably believed that a fair deal had been struck. At no point in time did Sergeant Lewis contemplate that his acceptance of an Article 15 NJP would ultimately lead to his dismissal from OCS without a hearing. Had Sergeant Lewis at any time been aware of such a possibility, the record indicates that he would not have waived his right to due process safeguards.
According to the facts set forth by the government, on June 10, 1982, Commander of the School Brigade, Colonel Robert S. Rose, decided plaintiff's non-judicial punishment would be the forfeiture of $ 321.00 for one month and a reprimand.
Sergeant Lewis was informed of this NJP on June 10, 1982 by Commander Rose. After the decision, plaintiff continued in Officer Candidate School in preparation for his graduation on June 18, 1982. Plaintiff had compiled a course average of 92.72% and was due to graduate 26th in a class of 151.
The day before the graduation, Colonel Rose -- the same officer who had handed out plaintiff's "non-judicial punishment" a week earlier -- directed that the plaintiff be dismissed from OCS because of "his unbecoming conduct on May 8, 1982, which seriously places his level of maturity, judgment, and reliability in question for commissioning as an officer in the U.S. Army." Commander Rose characterized his dismissal of Sergeant Lewis from OCS not as a punishment, but as an independent action, wholly apart from the NJP already administered. See Defendants' Motion to Dismiss, or, in the Alternative, for Summary Judgment ("Def. Br."), Exhibit C at 4.
Plaintiff applied for relief to the Army Board for Correction of Military Records ("ABCMR" or "the Board"), 10 U.S.C. § 1552, on November 12, 1983. He asked that his Article 15 (non-judicial punishment) be rescinded, that Commander Rose's dismissal of him from OCS be corrected and that he be commissioned as an Army officer. After a full hearing on the merits on March 13, 1985 -- at which plaintiff was represented by counsel -- the ABCMR made the following finding:
1. That all of the Department of the Army records pertaining to MARK B. LEWIS be corrected: (a) by setting aside the non-judicial punishment under Article 15, Uniform Code of Military Justice, which he received on 10 June 1982, and by restoring to him all rights, privileges and property he lost as a result thereof; and (b) by removing from his Official Military Personnel File the record of proceedings under Article 15, Uniform Code of Military Justice, dated 10 June 1982, and all documents related thereto.
2. That he be tendered an appointment in the grade of second lieutenant in the United States Army Reserve, with concurrent entry on active duty, effective the date of this action.
Def. Br., Exhibit C at 202.
On May 22, 1985, the Board's recommendation was rejected by Deputy Assistant Secretary of the Army John Matthews, acting on behalf of the Secretary of the Army. Matthews found that the non-judicial punishment was properly imposed. He also found that plaintiff was properly removed from OCS because, at the time of his arrest on the driving charges, plaintiff argued with police, refused to submit to a blood alcohol test, and left the medical facility without permission. Id. at 203-204. Matthews wrote that in his judgment, "such behavior raises serious questions as to [plaintiff's] maturity and fitness to accept and execute the responsibilities of a commissioned officer." Id. In short, Matthews found that what Commander Rose characterized as a two-part disposition was appropriate -- non-judicial punishment for the drunk driving incident in the form of a fine and a reprimand, and removal from OCS for unbecoming conduct. Id. The latter action was specifically deemed not to be the imposition of a penalty. It was considered solely a matter relating to the qualifications of the plaintiff to be an officer.
On September 16, 1986, plaintiff filed this complaint seeking review of this determination by the ...