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ORTIZ v. SECRETARY OF DEFENSE

December 14, 1993

GILBERT ORTIZ, JR., et al., Plaintiffs,
v.
SECRETARY OF DEFENSE, et al., Defendants.


Sporkin


The opinion of the court was delivered by: STANLEY SPORKIN

Plaintiffs Gilbert Ortiz and Nollie Plowman are two former soldiers who have brought this action to challenge the decision of the Army Board for Correction of Military Records ("ABCMR") denying their applications for upgrade of their discharges from "other than honorable" to "honorable". The ABCMR denied plaintiffs' applications because they were not filed within the time specified by statute and because plaintiffs failed to demonstrate that it was in the interest of justice to excuse their failure to file timely applications. This action is brought under the Administrative Procedure Act and the United States Constitution.

 The complaint contains three counts. Count I challenges the denial of the discharge upgrade for lack of timeliness as arbitrary, capricious and contrary to law because Plaintiffs filed within the statutory limitations period. Count II alleges that even if the statute of limitations were not met, the decision not to waive the statute of limitations in "the interest of justice" was arbitrary and capricious because the ABCMR failed to evaluate and justify its decisions with regard to the merits of plaintiffs's claims. Count III challenges the denial of upgrades on equal protection grounds, arguing that Army veterans are treated differently than Navy and Air Force veterans by their respective BCMRs.

 The Court has before it defendant's Motion to Dismiss or in the Alternative for Summary Judgment, and plaintiffs' Cross Motion for Summary Judgment.

 I. Facts

 The following facts are undisputed:

 Gilbert Ortiz

 Plaintiff Gilbert Ortiz entered the United States Army on November 7, 1966. During the time Ortiz was in the Army, he was repeatedly absent without leave ("AWOL") and accrued 913 days lost time due to AWOL and confinement. He was convicted twice by summary court-martial and once by special court-martial for AWOL. These proceedings resulted in reductions in grade and hard labor and a period of confinement. Ortiz' commander recommended that he be administratively removed from the service for reasons of unfitness. Informed of the serious consequences that might result from his contemplated separation from the service, Ortiz waived consideration of his case by a board of officers. He also waived representation by appointed counsel and the right to submit statements on his own behalf. On March 27, 1970, Ortiz was discharged from the Army with a discharge under other than honorable conditions. Ortiz was credited with 10 months, 21 days active service.

 On August 24, 1984, within 15 years of his date of discharge, Ortiz applied to the Army Discharge Review Board ("ADRB") for an upgrade of his discharge. Mr. Ortiz argued that his post-discharge conduct combined with his maturity at the time of his service warranted an upgrade of his discharge classification to general/under honorable conditions. His application to the ADRB was denied on June 18, 1985. Upon denial by the ADRB, Ortiz was informed that he had the right to apply for consideration with the ABCMR.

 On July 3, 1985 Ortiz applied to the ABCMR for an upgrade of his discharge. Mr. Ortiz listed the following as reasons why the Board should find it in the interest of justice to consider his untimely filed application:

 
I have maintained gainful employment and the erradic [sic] behavior demonstrated during the Army no longer exists as my personal problems have been resolved.

 Administrative Record I at 16. The ABCMR denied Ortiz' application on December 10, 1966. The Board's justification for denying the Mr. Ortiz' application was as follows:

 
The alleged error or injustice was, or with reasonable diligence should have been, discovered on 27 March 1970. The time for the applicant to file a request for correction of any error or injustice expired on 27 March 1973. The subject application was not submitted within the time required. The applicant has not presented, nor do the records contain, sufficient justification to establish that it would be in the interest of justice to excuse the failure to file within the time prescribed by law.

 Administrative Record I at 2.

 Nollie Plowman

 Plaintiff Nollie Plowman entered into active service with the United States Army on September 13, 1974. After completing his training, Plowman received non-judicial punishment for failing to report to his place of duty. Despite this initial infraction, Plowman was subsequently promoted, achieving the rank of SP-4 by May, 1976. On June 4, 1976, Plowman was given non-judicial punishment for failing to appear at the appointed time on guard duty and for being incapacitated for duty resulting from a previous "indulgence" of alcohol. Plowman was fined and reduced in grade from SP-4 to Private First Class. On July 30, 1976, Mr. Plowman received non-judicial punishment for being AWOL from July 9 through July 14. Mr. Plowman was placed under restriction, fined, given extra duty and reduced from Private First Class to Private E-2. Plowman again received non-judicial ...


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