the necessary deficiencies while on probation. AR 351-3, ¶ 6-5e.
Plaintiff claims that his termination was improper because the
hospital did not allow him sufficient time to improve or correct
his deficiencies and that therefore all documents relating to his
orthopedic residency should be expunged from his record.
Specifically, Plaintiff contends that since he prematurely
resigned and thus suffered an approximate seven month absence
from his studies, Defendant should have restarted his probation
clock upon reinstatement and given him another year to complete
his residency. However, these claims lack merit.
Plaintiff was notified on January 20, 1995, that he was being
placed on probation for 90 days. This probation followed several
years of marginal evaluations and recommendations that he leave
the field of orthopedic surgery. Plaintiff was given counseling
and was told of the perceived deficiencies. While it is true that
the education committee recommended on July 20, 1995, that
Plaintiff's probationary period be extended nearly another full
year and that Plaintiff may have submitted his resignation due to
miscommunication on the part of the hospital, these actions were
irrelevant to the terms of Plaintiff's probation. Plaintiff had
no legal entitlement to twelve months of specific training upon
probation. Plaintiff's termination does not appear to have been
unfounded or without sufficient basis. The records shows numerous
poor performance evaluations and reports from faculty that
Plaintiff was not "making significant improvement" during his
initial probation period of six months. Plaintiff clearly had the
opportunity to correct his deficiencies on probation for more
than the required minimum of 30 days. Therefore, this Court
cannot find that Defendant acted arbitrarily or capriciously in
terminating Plaintiff from the training program.
Finally, Plaintiff has no due process right to practice
medicine in the U.S. Army. While it is true that there is no
right to change residency procedures without some due process,
there was no material alteration to Plaintiff's probation terms
in this case. Despite the fact that Defendant was only required
to give 30 days probation, Plaintiff was originally given 90 days
to rectify his poor performance; this 90-day probation period was
later extended to six months, which was eventually extended to a
year-and-a-half. The fact that Plaintiff suffered a lapse in his
studies due to his premature resignation is not relevant to the
terms of his probation and is not sufficient to show a denial of
due process. Therefore, Plaintiff has suffered no impairment of
his liberty interest in this case.
Similarly, Plaintiff has suffered no loss of property because
there is no protected property interest in continued military
service. Guerra v. Scruggs, 942 F.2d 270 (4th Cir. 1991); see
also Navas v. Vales, 752 F.2d 765 (1st Cir. 1985); Rich v.
Secretary of the Army, 735 F.2d 1220 (10th Cir. 1984); Woodard
v. Marsh, 658 F.2d 989 (5th Cir. 1981), cert. denied,
455 U.S. 1022, 102 S.Ct. 1721, 72 L.Ed.2d 141 (1982); Ampleman v.
Schlesinger, 534 F.2d 825 (8th Cir. 1976). This includes denials
of reenlistment as well as discharges prior to the expiration of
a term of service. Sims v. Fox, 505 F.2d 857, 862 (5th Cir.
1974), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d
678 (1975). Here, Plaintiff claims an entitlement to continued
service as a military orthopedic surgeon. However, Plaintiff has
not pointed to any statute, contract, or state-declared policy
that would give him this property interest. See Perry v.
Sindermann, 408 U.S. 593, 603, 92 S.Ct. 2694, 33 L.Ed.2d 570
(1972) (holding that property rights in continued employment may
be derived from statutes, from explicit contracts, or from
state-declared policies but cannot emanate from "mere subjective
expectancy."); Board of Regents v. Roth, 408 U.S. 564, 577, 92
S.Ct. 2701, 33 L.Ed.2d 548 (1972) ("Property interests . . . are
not created by the Constitution. . . .
[T]hey are created and their dimensions are defined by existing
rules or understandings that stem from an independent source such
as state law. . . ."). Plaintiff claims that his property rights
emanate from "academic norms." However, there is no evidence in
the record to support this assertion. Moreover, the "academic
norms" cited by Plaintiffs would require only a reasonable amount
of time to correct the deficiency; based upon the administrative
record, the Court finds there is more than sufficient evidence to
conclude that this reasonableness requirement was met in this
Therefore, Defendant's motion for summary judgment will be
granted and Plaintiff's cross-motion for summary judgment will be
denied. An order will accompany this opinion.
In accordance with the accompanying memorandum opinion, it is
ORDERED that Defendant's Motion to Dismiss is denied. And it
ORDERED that Defendant's Alternative Motion for Summary
Judgment is granted. And it is further
ORDERED that Plaintiff's Cross Motion for Summary Judgment is
denied. It is further
ORDERED that this case is dismissed with prejudice.
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