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Rooney v. Secretary of the Army

November 06, 2003



Major Richard C. Rooney ("Rooney"), a physician, asks the Court to declare that he was honorably and irrevocably discharged from the Army on February 5, 2002, that the Army's subsequent attempts to revoke his discharge are void, and that, to the extent that it may be invoked by the Army to annul a discharge without providing a hearing and on the basis of merely"some" evidence of fraud, Army Regulation 135-175 § 1-10b(2) (1987) ("1-10b(2)") violates the due process clause of the Fifth Amendment. The Army maintains that Rooney has an outstanding service obligation, that he fraudulently solicited and obtained his discharge, and that the Army did not offend due process when it revoked the discharge without convening a court martial and based upon an administrative finding.

This is the Court's third pronouncement in this case.*fn1 Presently at issue are the Army's motion to dismiss for lack of subject matter jurisdiction or, in the alternative, for summary judgment, and Rooney's motion for declaratory judgment and cross-motion for summary judgment.*fn2 For the reasons elaborated in this opinion, Rooney's motions are denied, the Army's motion to dismiss is denied, and the Army's motion for summary judgment is granted.


A. Rooney's Military Career

Upon graduation from the United States Military Academy in 1991, Rooney incurred a five-year active duty service obligation to the Army. See 10 U.S.C. § 4348(a)(2)(B). He elected to postpone his required service and pursue a medical education under the Armed Forces Health Professional Scholarship Program. In a service agreement dated July 14, 1991, Rooney promised that, in exchange for the Army's payment of his medical school tuition and expenses, he would incur an additional eight-year service obligation. R. 104-10. He agreed that his time in medical school would not count toward the fulfillment of his active duty requirement. R. 105, ¶ 5.

After four years of medical school, Rooney entered active duty on June 11, 1995, as a captain in the Medical Corps. He spent the next six years performing his residency in orthopedic surgery, rotating through military hospitals in Washington, Alaska, and Hawaii. R. 117, 120-21, 123-25. During that time, Rooney took and passed the physical fitness test required of active duty personnel on four occasions, most recently in April 2001.*fn3 R. 123, 127, 129, 131.

In September 2000, Rooney had applied to participate in the Army's Nonfunded Graduate Medical Education Program ("NGMEP"), which is administered by the Office of the Surgeon General ("OTSG"). R. 360. NGMEP participants are released from active duty to pursue training at accredited civilian institutions. They must return to active duty upon completion of their training to serve for the length of their remaining service obligation. See Army Regulation 351-3 § 6-4 (1988). By a letter from the OTSG dated January 10, 2001, Rooney was informed that he had been selected to participate in the NGMEP and pursue a one-year fellowship in Spine Surgery at the University of Maryland Medical Center.*fn4 R. 133."It should be noted," continued the letter,"that participation in the NGMEP mandates a return to active duty immediately upon completion, withdrawal or termination from the training program." Id. Rooney accepted the offer by signing and returning the letter on January 26, 2001. He executed a service agreement with the Army detailing the conditions of his participation in the NGMEP on March 21, 2001. R. 134-36; see 10 U.S.C. § 3012. In relevant part, the service agreement provides:

5.... I [Rooney] certify that –....

c. The program will begin on 1 September 2001 and end on 31 August 2002.

d. My current [active duty service obligation] is 7 years, 8 months, and 16 days.

e. My [active duty service obligation] (excluding that incurred for NGMEP participation) on the beginning date of the training program will be 7 years, 8 months, and 16 days...

7. As a result of my participation in the NGMEP, I understand that –...

c. I will incur an [active duty service obligation] of 0 years, which may be served concurrently with any other active duty, which will immediately follow the end of my graduate medical education....

d. No part of any active duty obligation I now have or will incur by my participation in the NGMEP may be satisfied while I am in this program. Therefore, on my return to active duty I will complete any [active duty service obligation] incurred under this program, or the [active duty service obligation] I have listed above, whichever is greater....

h. While I am in this program, I will immediately notify the commander, U.S. Army Health Professional Support Agency... of... [any] Service-impairing physical disability.

R. 134-35 (emphasis original). Also in accordance with Army Regulation 351-3, Rooney solicited a voluntary release from active duty from the Army Reserve Personnel Command ("ARPERSCOM"). AR-PERSCOM issued orders relieving Rooney as of April 16, 2001. R. 152-53. The orders noted that"[p]articipation in the NGMEP mandates a return to active duty immediately upon completion, withdrawal, or termination from the training program. Officer has a remaining service obligation of (7) years, (9) months,*fn5 (16) sixteen days, upon re-entry onto active duty o/a 1 August 2002, and is to be served concurrently to any obligation incurred as an NGMEP participant; new [active duty service obligation] upon return to active duty will be 17 May 2010." Id.; R. 48.

B. Rooney's Discharge

Before relocating to San Diego from Tripler Army Medical Center in Hawaii, Rooney prepared an application for disability compensation from the Department of Veterans' Affairs ("VA"). The VA received his application on April 25, 2001. R. 200. His chief complaints included chronic pain and instability in his right knee and shoulder, instability in both ankles, and post-traumatic arthritis. R. 154. In a letter dated September 28, 2001, the VA assigned him a combined disability rating of 30% and found him to be entitled to a monthly payment of $298. R. 200. His disability status became effective on September 1, 2001. Id. The letter specifically informed Rooney that the VA would be paying him as a veteran. Id.

It appears that while his application for disability benefits was pending, Rooney initiated the formal process of obtaining a discharge from the Army. On April 26, 2001, he completed a form entitled"Medical Examination for Separation – Statement of Option." R. 157. By signing it, Rooney represented that he understood that he did not necessarily have to undergo a medical examination to be separated from the Army, but that if a review of his medical records demonstrated that an examination was appropriate, one would be ordered. He indicated that he did not desire a separation medical examination. Dr. Daniel Nishimoto of the VA also signed the form on the same day, indicating that he had reviewed Rooney's medical records and had determined that no further medical examination was required for Rooney's separation. Id.

On or about May 2, 2001, a document purporting to memorialize a medical examination of Rooney was generated over the electronic signature of Lieutenant Colonel David Kim, another physician at Tripler. R. 158-60. The evaluation declared Rooney fit for separation due to his multiple musculoskeletal problems, but also recommended a fuller examination by a medical evaluation board. R. 160. Rooney obtained a second evaluation, dated July 1, 2001, signed by Captain Mark Berkowitz, also a physician at Tripler. The evaluation chronicled Rooney's history of joint dysfunction, concluded that Rooney"should have been discharged" as early as 1998, and found that Rooney could not meet the Army's retention or appointment criteria. R. 163-64. Additionally, on July 16, 2001, Rooney underwent a comprehensive physical examination at the VA clinic in Honolulu. The conducting physician noted Rooney's complaints of joint pain and referenced Dr. Berkowitz's evaluation. R. 168-82.

The Army strongly disputes the reliability of these evaluations. Dr. Kim denies ever having signed the evaluation bearing his electronic signature. R. 398. According to Dr. Kim, Rooney approached him with the document and asked him to approve it; Dr. Kim alleges that he refused, adding that he"had no knowledge of the contents of the document" and"would never have signed" it. Id.; R. 399. He professes not to know how his electronic signature came to appear on the evaluation, but hypothesizes that someone could have logged on to Tripler's computer system using his password, or could have used his computer terminal without his authorization. R. 399. Dr. Kim opines, moreover, that Rooney"performed his job physically well until the date he completed his residency." Id. As for Dr. Berkowitz, he recalls signing a document at Rooney's request during a busy day at the orthopedic clinic. Rooney indicated that the document related to his"outprocessing," but did not explain to Dr. Berkowitz that it was a medical evaluation report finding him unfit for duty.*fn6 R. 401-02. Because Rooney was Dr. Berkowitz's chief resident at the time, it was not uncommon for Dr. Berkowitz to sign papers at Rooney's request. R. 402. Dr. Berkowitz denies ever medically examining Rooney in any way and states that, had Rooney told him"the true nature of this document or accurately described its contents," he would not have signed it.*fn7 Id.

As his discharge process unfolded, Rooney never alerted OTSG or AR-PERSCOM to his progress toward separation from the Army. R. 4. On May 9, 2001, NGMEP administrator Dolores Pfeiffer sent Rooney a letter confirming his temporary release from active duty and reiterating that his deferment was only for a specified time and purpose. R. 161. On June 12, 2001, apparently in consultation with local recruiters, Rooney completed a Separation Counseling Checklist. On the checklist, he indicated his interest in a number of services provided by the Army to service members entering civilian life: job placement, relocation assistance, education and training, health and life insurance, and financial counseling. R. 192-93. But on June 27, 2001, consistent with Rooney's continued participation in the NGMEP and to accommodate his transfer to San Diego, he wrote to AR-PERSCOM to request that his active duty re-entry date be moved from August 1 to August 31, 2002. R. 144. On July 2, 2001, the day after Rooney had obtained Dr. Berkowitz's signature on his purported evaluation, OTSG generated a letter confirming Rooney's new re-entry date and reiterating his obligation to return to active duty upon completion of the NGMEP. He received orders from AR-PERSCOM consistent with the new dates on July 17, 2001. The orders directed that he was being released from active duty to participate in the NGMEP as of August 31, 2001, and"not by reason of physical disability." R. 185.

On November 13, 2001, now over two months into his NGMEP fellowship in San Diego, Rooney called the OTSG and spoke with Mrs. Pfeiffer. He told her that he had recently had a bicycle accident, was not functioning in training, and would be unable to fulfill his service obligation to the Army.*fn8 R. 363. Mrs. Pfeiffer told him that he had to contact the Army Recruiting Command immediately and arrange a physical examination; only after a completed physical was on record could any determination about his fitness for active duty be made. Id. An enrollment verification form completed by the San Diego Center for Spinal Disorders and faxed to OTSG on November 19, 2001, did not indicate that Rooney was unable to train due to injuries.*fn9

Id. On December 12, 2001, AR-PERSCOM received a completed form ARPC FL 3937-E from Rooney. R. 371. That form is automatically generated by AR-PERSCOM's computer system and sent to servicemembers when they are required to undergo a periodic physical examination. On his form, Rooney checked a block indicating that he had completed his statutory or contractual service obligation to the Army, was requesting a discharge, and was thus not obliged to undergo an evaluation. A personnel clerk at AR-PERSCOM entered Rooney's responses into the ARPERSCOM computer system and, pursuant to policy, destroyed Rooney's actual form. Id. Only when a servicemember does not check an exception block indicating that he or she does not need an examination does the AR-PERSCOM team responsible for scheduling physicals contact the servicemember to arrange an examination. R. 394.

Rooney called AR-PERSCOM on January 7, 2002, to inform them that, because he was receiving VA disability benefits, his status had to be updated. He informed Lieutenant Colonel Julio Reyes that he had left active duty, was given a disability rating by the VA, and that he wanted to resign from the Army Reserve. R. 392. He did not tell Reyes that he was an NGMEP program participant or that he had an outstanding active duty service obligation. Id. Rooney claims that he was told to resign or forfeit his disability payments; Reyes denies telling Rooney that he could not receive VA benefits while serving in the reserves. Compare Pl. Cr. Mot. at 4; R. 392. Rooney mailed a letter resigning his commission on that day, noting that he entered into active duty on June 1, 1991, and that he had received a 30% disability rating from the VA. R. 209. His letter made no mention of his NGMEP participation. He did not inform the OTSG of his communications with AR-PERSCOM. R. 363-64, 221. On January 14, 2002, Rooney informed a local Army recruiting official that he should no longer be listed on the Individual Ready Reserve list because he had been medically discharged from active duty, and was in the process of resigning from the Reserves because he was disqualified from military service. R. 412. Rooney indicated that he needed to have an examination to confirm his physical impairment, but the local recruiter responded that his unit could only perform examinations on servicemembers seeking to enter the reserves. Id.; R. 225.

Meanwhile, Rooney's letter of resignation made its way through the ARPERSCOM bureaucracy. AR-PERSCOM's database contained no evidence of Rooney's active duty service obligation;*fn10 instead, it contained his certification on form ARPC FL 3937-E that he had no outstanding statutory or contractual obligation to the Army. R. 405. Seeing no outstanding duty obligation, Lieutenant Colonel Charles Lusso approved Rooney's discharge from the Army Reserve. Id. AR-PERSCOM promulgated Rooney's discharge order on February 5, 2002. R. 220.

On February 13, 2002, Rooney called Mrs. Pfeiffer at OTSG and informed her that he had received a discharge from AR-PERSCOM. R. 363. Mrs. Pfeiffer immediately contacted her liaison at AR-PERSCOM to determine how a discharge could have been issued to Rooney, given that his outstanding service obligation made him ineligible for resignation.*fn11 Id. After Mrs. Pfeiffer reviewed Rooney's case with AR-PERSCOM personnel, an order revoking Rooney's discharge was issued by AR-PERSCOM on February 15, 2002. R. 222. It was mailed to Rooney with a cover letter stating that his discharge ...

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