The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
Plaintiff Thomas Roberts, a former soldier in the United States Army and Vietnam veteran who has been diagnosed by United States Department of Veterans Affairs personnel as suffering from chronic and severe post-traumatic stress disorder ("PTSD"), brings this action under the Administrative Procedure Act, 5 U.S.C. § 701, et seq. Currently represented by counsel, plaintiff seeks judicial review of the denial by the Army Board for Corrections of Military Records ("ABCMR" or the "Board") of his pro se application for an upgraded discharge and subsequent Board decisions denying his repeated requests for reconsideration. Plaintiff further seeks a declaration setting aside the ABCMR's decisions and petitions the Court to issue a writ of mandamus directing the Board to recharacterize his discharge from the Army as either honorable or general. In the alternative, plaintiff asks that the case be remanded to the Board with instructions to consider arguments and material evidence previously raised by plaintiff, which the Board has failed to address.
The matter is before the Court on defendants' motion to dismiss, in part, and for summary judgment and on plaintiff's cross-motion for summary judgment. For the reasons explained herein, the Court will grant plaintiff's motion in part, deny defendants' motion, and remand the matter to the Board.
Plaintiff's military service began on July 13, 1967, when he voluntarily enlisted in the United States Army for a period of three years. (A.R. 302.) On March 1, 1968, he received a non-judicial punishment ("NJP"), under the provisions of Article 15, Uniform Code of Military Justice, 10 U.S.C. § 815, for addressing a superior with disrespectful language and for disobeying an order. (A.R. 239-41.) On April 13, 1968, plaintiff received another NJP, this time for being absent without leave for approximately one week. (A.R. 242.) Then on May 8, 1968, before a special court-martial, plaintiff entered a plea of guilty to the charge of willfully disobeying a lawful order and was sentenced to 30 days restriction. (A.R. 244.)
On June 17, 1968, having completed his initial training as a light weapons infantryman, plaintiff was ordered to Vietnam as a scout observer. (A.R. 249.) Plaintiff subsequently was reassigned to Korea on August 28, 1969, under the provisions of Army Regulation 614-17 (Apr. 4, 1968), which provided deferments of Vietnam service for soldiers with family members already serving in Vietnam. Plaintiff's time in Korea was not without incident, for on March 28, 1969, he was placed in pre-trial confinement in the Eighth Army Stockade located in Seoul, Korea. (A.R. 34, 60.)*fn1 On April 17, 1969, plaintiff was convicted by a special court- martial of various offenses occurring between December 25, 1968, and March 18, 1969. Specifically, he was convicted of leaving his place of duty without proper authority, violating curfew, stealing Army property, wrongfully appropriating an Army truck, wrongful possession of marijuana, and breaking restriction. (A.R. 251, 323-25.) On May 7, 1969, plaintiff's conviction was finalized, and he was sentenced to six months confinement at hard labor. (A.R. 34, 60, 323-25.)
On May 13, 1969, after 48 days in pre-trial confinement, and awaiting another 132 days of confinement at hard labor, plaintiff agreed to be discharged from the Army by reason of unfitness under the provisions of Army Regulation 635-212. In doing so, plaintiff also waived his right to counsel, a hearing or personal appearance before a board of officers, and the right to submit statements on his own behalf to the discharge authority. The generic waiver form that plaintiff signed, which was not a part of the administrative record,*fn2 further provided:
I understand that I may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions is issued to me. I further understand that, as the result of the issuance of an undesirable discharve [sic] under conditions other than honorable, I may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that I may expect to encounter substantial prejudice in civilian life. (Compl., Attach. I, Exhibit D.) A fair reading of the document suggests that by signing the form and thereby waiving the rights listed therein, plaintiff reasonably understood that a general discharge was a realistic option. Indeed, as plaintiff has recounted the circumstances surrounding his decision to waive his rights and to submit to a discharge by reason of unfitness in his submission to the ABCMR on December 26, 2001:
On or about 28 March 69 I was brought to Ascom Stockade, located in Seoul, Korea, there I was detain and incapacitated though incarceration by being confined to a six (6) feet by six (6) feet jail cell without reasoning, for I had not been tried for any crime, at the stockade I had no contact with other inmates, no physical exercise, eating bread, lettuces, tomatoes, carrots, and drinking water, for a period of two (2) weeks at intervals, then I was allow to eat a regular meal for a period of two (2) weeks, I endured this injustice for over four (4) months, two (2) weeks on bad food, then two (2) weeks on good food, so when CPT. David V. Foley appeared to advise me on the contemplated separation under AR 635-212, what did I know?, I never heard of this before, all I know was that this was my way out of the Military . . . .
* * * [O]n 13 May 1969 here comes a JAGC lawyer by the name of CPT. David V. Foley who offered me a way out of the stockade, I was under duress, I wanted out, I could'nt believe the base commander did this to me. The JAGC lawyer said that I most likely received a General Discharge under Honorable Condition, but that didn't happen. (A.R. 73.)
Under applicable Army regulations in effect at the time, however, plaintiff's decision to initiate procedures to accomplish his separation from the Army by reason of unfitness, accompanied by his waiver of rights, made it all but a certainty that plaintiff would receive a discharge under conditions other than honorable, and not, as plaintiff appears to have believed, a discharge under honorable conditions. Paragraph 4(a) of Army Regulation 635-212 provided that "[a]n individual separated by reason of unfitness will be furnished an undesirable discharge . . . except that an honorable discharge . . . may be awarded if the individual being discharged has been awarded a personal decoration or if warranted by the particular circumstances in a given case." Id.*fn3 (emphasis added) Plaintiff had not been awarded a personal decoration at the time of his discharge,*fn4 and having waived his rights to a hearing and to submit statements on his own behalf, he essentially relinquished the opportunity that he otherwise would have had to persuade the discharge authority that his "particular circumstances" warranted an honorable discharge.
Thereafter, on July 22, 1969, plaintiff was discharged from the Army under conditions other than honorable. (A.R. 49.) On May 10, 1971, plaintiff applied to the Army Discharge Review Board ("ADRB") for an upgrade to his discharge.*fn5 (A.R. 237.) On July 28, 1971, while his application was pending before the ADRB, plaintiff re-enlisted in the Army for another three-year period. (A.R. 199.) Less than one month later, however, on August 19, 1971, he was discharged with an honorable discharge on the basis of erroneous enlistment. (A.R. 214.) Subsequently, on December 18, 1972, the ADRB denied plaintiff's May 10, 1971 application for an upgrade to his 1969 discharge. (A.R. 231.)*fn6
Almost thirty years later, on May 29, 2001, plaintiff submitted a pro se application for an upgraded discharge to the ABCMR. (A.R. 93.) Plaintiff attached to his application Veterans Affairs ("VA") medical records indicating that he had been diagnosed as suffering from combat-related PTSD. He also attached a letter from the Coordinator of his Veterans Affairs PTSD Clinical Team, Captain Jose R. Vasquez, who wrote that plaintiff's medical condition was "overlooked or misdiagnosed" at the time of his military service and that plaintiff's lack of treatment resulted in his "incarceration," "mistreatment," and a discharge under conditions other than honorable, "instead of a medical [discharge] due to combat related PTSD." (A.R. 96-97.)
On September 6, 2001, the ABCMR denied plaintiff's application, finding that he had failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice. (A.R. 83-90.) The Board's Memorandum of Consideration included a summary of the proffered basis for plaintiff's application, as well as a summary of the information contained in plaintiff's military personnel records, including his previously mentioned misconduct. Although plaintiff's "discharge packet is missing from his military records," the Board noted that a copy of plaintiff's report of discharge on DD Form 214 "shows he was administratively discharged on [July 22, 1969], under the provisions of Army Regulation 635-212, by reason of unfitness." (A.R. 86.) The Board further noted that paragraph 6(a)(1) of Army Regulation 635-212, in effect at that time, "provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness and an [undesirable ...