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Bland v. Secretary of the Army

March 23, 2007

GILBERT BLAND, PLAINTIFF,
v.
SECRETARY OF THE ARMY, DEFENDANT.



The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge

MEMORANDUM OPINION

By this action, pro se plaintiff Gilbert Bland challenges his 1971 Other Than Honorable Discharge from the United States Army, as well as various decisions of the Army Discharge Review Board ("ADRB") and Army Board for Correction of Military Records ("ABCMR") denying his applications to have his Army record corrected and upgraded. Before the court is defendant's motion to dismiss in part and for summary judgment [#8]. Upon consideration of the motion, the opposition thereto, and the record of this case, the court determines that the motion must be granted.

I. BACKGROUND

While Bland was serving in active duty in the Army, multiple court-martial charges were brought against him for the offense of Absent Without Leave ("AWOL"). Facing these charges, Bland requested discharge for the good of the service in lieu of court-martial, pursuant to Army Regulation 635-200, Chapter 10. This request was granted.

In 1974, Bland applied to ADRB to have his discharge upgraded, but his request was denied. He re-applied to ADRB for an upgrade in 1977, pursuant to the Department of Defense's Special Discharge Review Program ("SDRP"). ADRB recommended that his discharge be upgraded (to General, Under Honorable Conditions), but this recommendation was rejected during the SDRP approval process. Another request, in 1982, was also rejected. Bland also applied to ABCMR for relief in 1975, 1978, 2000, and 2003. Each of these applications was denied.

The Secretary has filed a motion to dismiss and for summary judgment, arguing (1) that Bland's claims regarding the underlying discharge, as well as those regarding his pre-2000 review and upgrade petitions, are barred by the statute of limitations applicable to suits against the federal government; (2) that Bland is not entitled to mandamus relief; and (3) that summary judgment is warranted because the 2000 and 2004 decisions of ABCMR were not arbitrary and capricious.

II. ANALYSIS

A. Standard of Review

This court's ability to review matters related to military discharges is limited, as military personnel decisions themselves lie outside the court's jurisdiction. Piersall v. Winter, 435 F.3d 319, 321--22 (D.C. Cir. 2006) (claims for retroactive promotion are non-justiciable); Kreis v. Sec'y of the Air Force, 406 F.3d 684, 686 (D.C. Cir. 2005) ("Kreis III"). The court does have jurisdiction, however, "to evaluate, in light of familiar principles of administrative law, the reasonableness of the Secretary's decision not to take certain corrective action with respect to [military records]." Ibid. (quoting Kreis v. Sec'y of the Air Force, 866 F.2d 1508, 1511 (D.C. Cir. 1989) ("Kreis I")). Pursuant to such a review, the court may only "determine whether the Secretary's decision making process was deficient, not whether his decision was correct," ibid., and the decision must be upheld unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," ibid. (quoting 5 U.S.C. § 706(2)(A)). Thus, as with traditional review of administrative agency actions, the court will not disturb the decision so long as the deciding body "examine[d] the relevant data and articulate[d] a satsifactory explanation for its action including a 'rational connection between the facts found and the choice made.'" Ibid. (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983)). Agency findings of fact are reviewed for "substantial evidence." JSG Trading Corp. v. Dep't of Agric., 235 F.3d 608, 611 (D.C. Cir. 2001) (substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion when taking into account whatever in the record fairly detracts from its weight" (internal quotation marks omitted)); FPL Energy Maine Hydro LLC v. F.E.R.C., 287 F.3d 1151, 1160 (D.C. Cir. 2002) ("The 'substantial evidence' standard requires more than a scintilla, but can be satisfied by something less than a preponderance of the evidence."). Finally, though judicial review of military records-correction decisions incorporates the core "arbitrary or capricious" standard of traditional administrative law, such review involves an "unusually deferential application" of that standard. Cone v. Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000) (quoting Kreis I, 866 F.2d at 1514). "This deferential standard is calculated to ensure that the courts do not become a forum for appeals by every soldier dissatisfied with his or her ratings, a result that would destabilize military command and take the judiciary far afield of its area of competence." Ibid. (citing Orloff v. Willoughby, 345 U.S. 83, 94 (1953) ("Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters.").*fn1

B. Statute of Limitations

As Bland readily concedes, the six-year statute of limitations applicable to suits against the United States government bars him from challenging many of the decisions regarding his military record. See 28 U.S.C. § 2401(a); Calhoun v. Lehman, 725 F.2d 115, 116 (D.C. Cir. 1983); Pl.'s Surreply at 7.*fn2 His complaint was timely filed only as to the 2000 and 2003 applications to ABCMR, and to the extent equitable tolling of the statutory deadline might theoretically be available for his previous records requests, see Spannaus v. U.S. Dep't of Justice, 824 F.2d 52, 59--61 (D.C. Cir. 1987), Bland has not demonstrated any reason why the statute should be tolled here. Only the final two ABCMR applications, therefore, are properly before the court.

C. The Merits

1. The 2000 ABCMR Decision

In 2000, Bland applied to have his discharge corrected, from Other Than Honorable to "Honorable or Medical," arguing that he was suffering from depression and post-traumatic stress disorder ("PTSD") when he was AWOL, and that because of these conditions, his decision to be absent without leave could not have been willful. Administrative Record ("AR") 288. The Board denied the request. Though the Board recognized that Bland may have in fact suffered from depression and PTSD when he went AWOL, it disagreed that these conditions necessarily meant that his actions were not willful. Citing his ability to obtain employment while AWOL and rejecting the notion that Bland's mental ...


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