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VERPLANCK v. ENGLAND

April 9, 2003

BRIAN J. VERPLANCK, PLAINTIFF,
v.
GORDON R. ENGLAND, SECRETARY OF THE NAVY, DEFENDANT



The opinion of the court was delivered by: Reggie B. Walton, District Judge.

MEMORANDUM OPINION

This matter is before the Court on Defendant's Motion to Dismiss or in the alternative, for Summary Judgment ("Def.'s Mot.") and Plaintiff's Cross-Motion for Summary Judgment. The plaintiff's complaint arises from his involuntary separation from the United States Naval Academy ("Academy") and the Secretary of the Navy's ("Secretary") decision requiring the plaintiff to reimburse the United States $94,555.10 for his Academy educational expenses pursuant to 10 U.S.C. § 2005 (2000). Following the denial of the relief requested by the plaintiff by the Board for Correction of Naval Records' ("BCNR"),*fn1 the plaintiff initiated this action which challenges the reimbursement obligation because the Secretary failed to advise him of this statutory obligation, 10 U.S.C. § 2005(g)(2), and to cause an investigation to be conducted regarding the validity of the debt, 10 U.S.C. § 2005(g)(1). The defendant acknowledges that it failed to comply with this statute in both respects, but claims that the omissions amount to harmless error because the plaintiff knew about this reimbursement obligation and an investigation was unnecessary because this debt is valid. For the reasons set forth below, the Court finds it appropriate to remand this case to the Secretary so that an investigation is conducted pursuant to § 2005(g)(1), during which the official investigating the validity of the debt may consider the effect, if any, the Academy's failure to advise the plaintiff of the reimbursement obligation of § 2005(g)(2) has on the plaintiff's obligation to make the reimbursement.*fn2

I. Background

A brief recitation of the facts of this case, including plaintiff's alleged misconduct, the Naval Academy's separation proceedings, the Deputy Assistant Judge Advocate General for Administrative Law (DAJAG) Advisory Opinion, and the BCNR decision will precede the Court's analysis of the legal challenges raised in the parties' papers.

(A) The Alleged Misconduct

Plaintiff Brian VerPlanck was admitted to the Academy in July of 1994. Administrative Record ("A.R.") at 0024. Prior to beginning his studies at the Academy, the plaintiff signed a written agreement promising to successfully complete the Academy's course of instruction, to accept appointment as a commissioned officer upon graduation, and to serve a minimum of six years of active duty thereafter. Id. at 0125 ¶ I.A. The plaintiff also expressly agreed that if he failed to fulfill this service obligation he would reimburse the United States government for the cost of the education he received at the Academy at a rate determined by the Navy. Id. at 0125 ¶ I.B. On August 20, 1996, immediately prior to beginning his third-year of study, the plaintiff signed a statement which contained the same terms as the 1994 agreement just discussed above, including the fact that he would incur an enlisted service obligation if he continued his studies at the Naval Academy. Id. at 0127. The 1996 document also explained that the plaintiff could be required to fulfill this obligation for several reasons, including if he was involuntarily separated from the Academy for "academic deficiency, unsatisfactory conduct (including Honor Concept violations), [or] inaptitude . . ." Id.

On September 30, 1996, the plaintiff completed a Pre-Commissioning Physical and, as a result of his vision testing 20/40 in each eye, he was disqualified from becoming a Student Naval Aviator. Complaint ("Compl.") ¶ 7; A.R. at 0025. In order to improve his vision, the plaintiff obtained corrective contact lenses, i.e., Orthokeratology lenses ("Ortho-K lenses"), from a civilian physician while on leave in December of 1996. Compl. ¶ 8; A.R. at 0025. The use of Ortho-K lenses "is a method of improving unaided vision by molding the cornea with contact lenses." A.R. at 0004, 0026. After wearing these lenses intermittently between the period of December 1996 to July 1997, the plaintiff advised an optometrist at the Academy in January 1998 that he had passed an Aviation Vision Retest, but that his medical records had not been corrected to reflect this change. Defendant's Statement of Material Facts As To Which There is No Genuine Dispute ("Def.'s Facts") at ¶¶ 11-12. A retest conducted on January 8, 1998, resulted in a finding that plaintiff's visual acuity in both eyes was 20/20. Compl. ¶ 11; A.R. at 0025. Another corneal topography was also performed at this same time, which indicated the possible use of Ortho-K lenses, which the plaintiff denied having ever worn. Def.'s Facts at ¶¶ 14-15; A.R. at 0026, 0208 ¶ 6. The doctor became suspicious about the plaintiff's denial that he had never worn Ortho-K lenses and asked the plaintiff to write a statement at the bottom of the vision retest describing any previous use of contact lenses or any form of corneal surgery. A.R. at 0004. The plaintiff made a statement that he had not used contact lenses since "July 1997." Id. at 0004-5. Following a review of plaintiff's medical records, the Naval Aerospace Medical Institute (NAMI) in Pensacola, Florida requested that plaintiff be retested a third time at the Bethesda Naval Hospital in Maryland. Id. at 0200. When plaintiff was informed about the retest, he approached his company officer and confessed to having lied about his use of contact lenses. Id. at 0026. Following this admission, plaintiff was questioned on March 6, 1998 by the Brigade of Midshipmen Medical Officer ("Medical Officer"), who suspected that plaintiff had made a false official statement during his January 8, 1998 eye examination. Id. at 0027. During this questioning, the plaintiff once again admitted that he had been deceitful when answering questions during his previous eye examination. Id. The Medical Officer subsequently reported the plaintiff's conduct to the Midshipman Brigade Honor Board ("Honor Board"), which is a panel of students responsible for investigating and conducting hearings regarding alleged student violations of the Academy's honor code. Id.

(B) The Plaintiff's Separation Proceedings from the Academy

On April 13, 1998, the plaintiff appeared before the Honor Board and pled guilty to lying. Id. at 0147, 0150-51. The plaintiff informed the Honor Board that he had confessed to his company commander and to the Medical Officer because he was "tired of living a charade and wanted to clear his conscience even though he was aware of the worse case scenario that comes out of this, everyone's aware of it, you know, as far as separation." Def.'s Mot., Memorandum of Law in Support of Defendant's Motion to Dismiss or for Summary Judgment ("Def.'s Mem.") at 7 (citing A.R. at 153) (internal citations omitted). On May 5, 1998, a hearing was conducted by the Commandant of Midshipman ("Commandant"). A.R. at 0005. The plaintiff did not receive notification immediately prior to this hearing that if he was separated, he may become responsible for repaying the costs of his Naval Academy education. Compl. ¶¶ 21-23. During the Commandant's hearing, the plaintiff presented witnesses and made a statement on his own behalf in which he acknowledged that he had committed an honor code violation, expressed remorse for his conduct and indicated his hope that he would have a future in the Navy. A.R. at 0165-69. Upon hearing and evaluating all of the evidence presented, the Commandant informed the plaintiff that he was going to recommend to the Superintendent of the Academy ("Superintendent") that the plaintiff be discharged from the Academy. Id. at 0006. On May 26, 1998, the Superintendent informed the plaintiff that he concurred with the Commandant's recommendation and he submitted a memorandum to the Secretary recommending the plaintiff's discharge, noting that the plaintiff had incurred a three-year service obligation, but that based on the circumstances he believed that the plaintiff was unfit for active duty. Id. On June 1, 1998, the plaintiff signed a "Statement of Understanding[,]" which advised him of his reimbursement obligation and his right to have an investigation conducted to determine the validity of the debt. Id. at 0007. The plaintiff also submitted at that same time a document entitled "Advisement of Options Pertaining to My Separation from the Naval Academy[,]" which stated that he did not acknowledge that he was obligated to reimburse the United States government in the amount of $94,555.10. Id. The plaintiff was informed that he could petition the Secretary for a waiver of the active duty service or reimbursement obligations, and that the plaintiff responded that it was his preference to "provide monetary recoupment in lieu of active duty service." Id. The plaintiff then submitted an eight-page Show Cause statement on this same date requesting a waiver of both the monetary reimbursement and the active duty service. Id.

On June 3, 1998, the Superintendent sent the Secretary another memorandum on the plaintiff's separation proceedings, recommending that the plaintiff reimburse the United States government for his educational expenses. Id. at 0008 On July 13, 1998, the Chief of Naval Personnel endorsed the Superintendent's recommendation, which the Assistant Secretary of the Navy for Manpower and Reserve Affairs, acting for the Secretary, approved on August 6, 1998. Id.

(C) The DAJAG Advisory Opinion and the BCNR's Decision

Following the plaintiff's separation from the Academy, his counsel sent two letters to the Defense Finance and Accounting Service (DFAS) in January and February of 1999 stating that his client was contesting the debt and also requested an explanation of the basis and amount of the debt. Id. at 0097-98. A letter to the same effect was sent to the Superintendent on August 28, 1999. Id. at 0100. On September 20, 1999, the plaintiff filed a petition with the BCNR asserting several errors allegedly committed by the defendants. Id. at 0032. Of significance to what has been brought to this Court for resolution, the plaintiff asserted that he had not been provided with the proper warning pursuant to 10 U.S.C. § 2005(g)(2) and that the monetary recoupment obligation was improper since an investigation pursuant to 10 U.S.C. § 2005(g)(1) to determine the validity of the debt had been conducted, despite the challenge he had raised. Id. at 0040-41.

The BCNR received an Advisory Opinion from the DAJAG that addressed plaintiff's arguments. Id. at 0045. The DAJAG stated that because the plaintiff had not contested the debt at the time of separation, an investigation was not mandated, but since the plaintiff was now clearly disputing the debt, an investigation should be conducted. Id. at 0046, 0059. The DAJAG also concluded that the plaintiff's failure to receive a specific advisement immediately prior to the Honor Board proceeding regarding the potential recoupment of his educational expenses amounted to harmless error since he had been informed on two prior occasions that discharge from the Naval Academy could obligate him to pay for his Academy-related educational expenses. Id. at 0046, 0060.

The plaintiff responded to the DAJAG Advisory Opinion*fn3 claiming that if he had been informed of the potential reimbursement obligation immediately prior to the Honor Board hearing, he would have taken different actions that would have significantly increased his prospects of achieving a favorable outcome. Plaintiff also noted that if a debt investigation was conducted now it would be minimally effective due to the passage of time. He therefore asserted that his ability to ...


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