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VIETNAM VETERANS OF AMERICA v. SECRETARY OF THE NA

May 31, 1990

VIETNAM VETERANS OF AMERICA, et al., Plaintiffs,
v.
SECRETARY OF THE NAVY, Defendant


George H. Revercomb, United States District Judge.


The opinion of the court was delivered by: REVERCOMB

GEORGE H. REVERCOMB, UNITED STATES DISTRICT JUDGE

 The plaintiffs brought this lawsuit on their own behalf and on behalf of similarly situated former members of the U.S. Navy and U.S. Marines challenging the defendant's interpretation of the Laird Memoranda which provide for recharacterization of those less than honorable discharges, issued prior to July 7, 1971, that were based solely on personal use or possession of drugs. This matter is before the Court pursuant to the parties' cross-motions for summary judgment on counts two and three of plaintiffs' complaint.

 A. Prior History

 In the first count of their complaint, the plaintiffs alleged that the Laird Memoranda mandated upgrades to at least general discharge for all persons within the defined class, and that the defendant had violated this directive. The defendant interpreted the Laird Memoranda not to require mandatory upgrades but simply mandatory review and that persons who fell within the defined class could nevertheless be denied any upgrade if their military records disclosed evidence of service-related misconduct, or "aggravating circumstances," that could have formed the basis of the original discharge, even if that misconduct was neither cited nor relied upon in the discharge proceedings themselves. This Court ruled in favor of the plaintiffs on count one in its June 6, 1988 Memorandum Opinion and Order but was reversed by the Court of Appeals which held that the Laird Memoranda merely mandated a process of review and not automatic upgrades.

 This Court was unable to grant summary judgment as to counts two and three of the plaintiffs' complaint in its prior order. In counts two and three of their complaint the plaintiffs allege that the defendant's interpretation of the Laird Memoranda is fundamentally inconsistent with the interpretations that the Army and Air Force have adopted, and thus violates plaintiffs' statutory and constitutional rights to equal treatment. The plaintiffs contend that the Army and Air Force DRBs maintain a de facto standard under the Laird Memoranda which automatically provides an upgrade to at least general discharge when an applicant has satisfied the three criteria of the Laird Memoranda. In this Court's June 6, 1986 Memorandum Opinion and Order this Court found that a genuine issue of material fact existed as to plaintiffs' second and third claims and that summary judgment accordingly could not be entered for either party as to those claims. The Court of Appeals affirmed this Court's denial of summary judgement as to these claims. However, on remand and after further discovery, counts two and three of plaintiffs' complaint can now be disposed of pursuant to the parties' cross-motions for summary judgment. *fn1"

 B. Difference in Approach Among the Branches

 The plaintiffs cite a statistical breakdown of the DRB decisions among the Air Force, Army and defendant which shows that in virtually every case the Air Force and the Army granted discharge upgrades but the defendant only granted upgrades in approximately only half of the cases. The defendant contends, in response, that the statistical difference is meaningless because the real concern is not uniformity of result but uniformity of standards by which results are achieved. This Court agrees with the defendant's position that the fact of a statistical disparity alone does not suggest that the component branches are applying fundamentally inconsistent standards in reaching their decisions whether to upgrade servicemen. See National Association of Concerned Veterans v. Secretary of Defense, 487 F. Supp. 192, 204 (D.D.C. 1979).

 However, this Court notes that the statistical disparity between the defendant and the other component branches certainly raises a question which causes this Court to exercise a hard look at the substance of the DRB decisions to determine whether the cause of the disparities is due to the application of fundamentally inconsistent standards. The plaintiffs point to the language in several of the Army and Air Force DRB decisions involving the Laird Memoranda which raise the reasonable inference that these services are in fact granting upgrades to at least general whenever the applicant satisfied the three criteria and that these services looked at "aggravating circumstances" only to determine whether the applicant should receive a further upgrade to include fully honorable. For example, one Army DRB decision provides:

 
the applicant, who had been discharged for drug abuse, fell under the provisions of the Laird Memorandum and, therefore, should be given at least a General Discharge. Therefore, the Board considered the quality of service of the applicant and because of his many acts of indiscipline, to include two Articles 15, one Summary Court Martial and one Special Court Martial, they determined that it could grant no higher than a General Discharge because of these indisciplines.

 This approach to the Laird Memoranda is fundamentally inconsistent with that of the defendant's which looks at aggravating circumstances in the first instance to determine whether to even upgrade an applicant's discharge to general.

 The defendant has cited to no record facts by which to rebut the fact that, as a review of the Air Force and Army decisions illustrates, the defendant is applying a fundamentally different approach to the Laird Memoranda than the other component branches. The depositions of Colonel James Rowe and Colonel William Sawyer simply reaffirm the affidavits of Army Colonel James W. Rowe and Air Force Colonel Richard C. Swan which had supported the defendant's previous motion for summary judgment. Although Colonel Rowe and Colonel Sawyer testified in their depositions that they interpreted the Laird Memoranda to not require mandatory recharacterizations if the three criteria are met, their explanation of the discharge decisions to the contrary is simply that they disagree with the semantic wording of those decisions and that they do not think that they properly reflect the Laird Memoranda. However, the underlying question still begged is whether these decisions in fact have been applying the Laird Memoranda to require mandatory recharacterizations. Whether Colonels Rowe and Sawyer currently interpret the Laird Memoranda differently does not fully address how the Air Force and Army discharge decisions over the past several years have in fact been applying the Laird Memoranda.

 Accordingly, this Court rules that the defendant has not been able to dispute the record fact that the defendant is interpreting the Laird Memoranda ...


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