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LIPSMAN v. SECRETARY OF THE ARMY

March 31, 2003

DANIEL J. LIPSMAN ET AL., PLAINTIFFS,
v.
SECRETARY OF THE ARMY ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ricardo M. Urbina, United States District Judge

MEMORANDUM OPINION

DENYING THE DEFENDANTS' MOTION TO DISMISS

I. INTRODUCTION

The plaintiffs, two Army veterans and a veterans services organization, bring suit to redress alleged violations of 10 U.S.C. § 1552, the Fifth Amendment, and the Administrative Procedure Act ("APA"). Specifically, the plaintiffs challenge an amendment to the governing regulations of the Army Board for the Correction of Miliary Records ("ABCMR") that confers adjudicatory power on staff members who work for, but are not members of, ABCMR to evaluate reconsideration requests submitted by veterans and active members of the Army. This matter now comes before the court on the defendants' motion to dismiss the plaintiffs' claims pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6). Because the record does not suggest that the plaintiffs lack standing and because the matter is appropriate for judicial review, the court denies the defendants' motion to dismiss.

II. BACKGROUND

A. Factual Background

The plaintiffs in this case are two individuals ("the individual plaintiffs") and one veterans service organization. Plaintiff Daniel Lipsman served in the United States Army ("Army") until his discharge in 1964. Compl. ¶ 2. Plaintiff Jose Valez Ocasio also served in the Army until his discharge in 1993. Id. ¶ 3. Plaintiff National Association for Black Veterans ("NABVETS") is a non-profit veterans service organization authorized to bring claims under laws administered by the Department of Veterans Affairs. Id. ¶ 4. The defendants are the Secretary of the Army ("the Secretary"); ABCMR, the board of civilians in the Secretary's office that reviews requests for changes to military records; and Carl Chun, the director of ABCMR ("the director"). Id. ¶¶ 5-7.

Section 1552(a)(1) authorizes the Secretary to modify the military record of any current or former member of the Army when such action is "necessary to correct an error or remove an injustice." Id. ¶ 8 (citing 10 U.S.C. § 1552(a)(1)). The statute directs the Secretary to make such corrections through boards of civilians. Id. Toward that end, the Secretary established ABCMR to consider and act on corrections requests. Id. (citing 32 C.F.R. § 581.3(b) & Army Regulation ("A.R.") 15-185 ch. 1 § 2).

The plaintiffs challenge an amendment to the Army regulations that sets forth ABCMR's procedures for reviewing two types of reconsideration requests: those received more than one year after the ABCMR action, and those received after ABCMR already considered the applicant's first reconsideration request. Id. ¶ 11 (citing 32 C.F.R. § 583.1(g)(4)(ii) & A.R. 15-185 § 2-15(b)). As amended, the regulation provides in part that

ABCMR staff will review the request to determine if substantial relevant evidence is submitted showing fraud, mistake of law, mathematical miscalculation, manifest error, or the existence of substantial relevant new evidence discovered contemporaneously or within a short time after the ABCMR's original consideration. If the ABCMR staff finds such evidence, it will be submitted to the ABCMR for its determination of whether a material error or injustice exists and the proper remedy. If the ABCMR staff does not find such evidence, the application will be returned to the applicant without action.
32 C.F.R. § 583.1(g)(4)(ii); A.R. 15-185 § 2-15(b).

On various occasions, and based on new evidence, the individual plaintiffs submitted to ABCMR requests for reconsideration of prior ABCMR rulings. Id. ¶ 14. After the ABCMR office received these requests, the director informed the individual plaintiffs that ABCMR staff members had determined that their applications did not contain evidence sufficient to merit reconsideration. Id. ¶ 15. The plaintiffs allege that the defendants violated their rights under section 1552, the Fifth Amendment, and the APA when ABCMR staff screened the substance of their reconsideration requests to determine whether those requests should be submitted to ABCMR for review. Id. ¶¶ 21-23. Put simply, the plaintiffs want ABCMR rather than its staff to consider and adjudicate their applications concerning corrections of military records.

B. Procedural Background

On January 28, 2002, the plaintiffs filed a complaint alleging violation of rights guaranteed under section 1552 to have a board of civilians consider and act on applications for the correction of military records, violation of due process of law under the Fifth Amendment, and violation of the APA. On April 4, 2002, the defendants filed a motion to dismiss for lack of standing and for failure to state a ...


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