The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge
Plaintiff Jonathan Thalasinos is a former Judge Advocate General Officer in the United States Army Reserves who was discharged for larceny. He claims that the Army violated his due process rights and the Administrative Procedures Act in the proceedings that led to his discharge. Pending before the Court are the parties cross motions for summary judgment. Upon review of the motions, responses and replies thereto, applicable law, and the entire record, defendant's Motion to Dismiss, in Part, and for Summary Judgment is granted in part and denied in part. Plaintiff's Cross-Motion for Summary Judgment is granted in part and denied in part.
No material facts in this case are in dispute. See Def.'s Statement of Material Facts ("Def.'s Facts"); Pl.'s Resp. to Def's Statement of Material Facts (Pl.'s Resp. to Def.'s Facts"); Pl.'s Statement of Material Facts ("Pl.'s Facts"); Def.'s Counter-Statement of Facts.
Plaintiff, a former Judge Advocate General Officer, was appointed as a Reserve Commissioned Officer of the Army on November 28, 1984. Def.'s Facts ¶ 1. He served honorably for over 15 years prior to the incident that gave rise to this case. Pl.'s Facts. ¶¶ 3-4.
In late July 1998, plaintiff was at Fort Huachuca in Arizona participating in the residential phase of a military intelligence course. Id. ¶ 5; Def.'s Facts ¶ 2-3. On July 29, 1998, plaintiff entered the Fort Huachuca Post Exchange and removed a small pocketknife from the shelf. Pl.'s Facts ¶ 8. He claims that he was engaged in some sort of prank and not attempting to steal anything. See id. ¶¶ 6-8; Administrative Record ("A.R.") 78. Plaintiff then placed the knife in his pocket, but he did not leave the premises with the knife. Id. ¶¶ 9-10. A store security officer detained plaintiff and took him to the security office. Id. ¶ 11. Plaintiff placed the knife on top of a television set in the security office, where it was located by store security personnel. Compl. ¶ 26. He was then transported to the Military Police station and released on personal recognizance. Pl.'s Facts ¶ 12.
Facing charges of larceny under Article 121 of the Uniform Code of Military Justice ("UCMJ"), plaintiff chose to proceed pursuant to UCMJ Article 15 rather than demanding a court-martial proceeding.*fn1 Def.'s Facts ¶ 4; A.R. 61. The Article 15 Record of Proceedings states that plaintiff "did, at Fort Huachuca, Arizona, on or about 29 July 1998, steal a Spyderco knife, of a value of $35.95, the property of the Fort Huachuca Main Exchange. This is a violation of Article 121, UCMJ."*fn2 A.R. 61.
On August 7, 1998, plaintiff received non-judicial punishment under Article 15 in the form of a Memorandum of Reprimand ("MOR") from Major General John D. Thomas, Commanding General (Regular Army), Fort Huachuca. Pl.'s Facts ¶ 13. The MOR states that plaintiff "attempted to depart the Main Exchange without rendering payment for a knife ($34.95)." A.R. 60. The MOR indicates that the initial police report "convinced [Major General Thomas] that [plaintiff] attempted to commit the . . . alleged shoplifting incident" and that plaintiff was "reprimanded for attempting to shoplift at the Main Exchange." Id. The MOR further indicates that it was imposed as a punitive measure under UCMJ Article 15 and would be filed as an attachment to the Record of Proceedings under Article 15. Id. Major General Thomas directed that the MOR be placed in the restricted, as opposed to performance, section of plaintiff's Official Military Personnel File ("OMPF"). Pl.'s Facts ¶ 14. Plaintiff did not appeal Major General Thomas's finding that plaintiff was guilty of larceny. Def.'s Facts ¶ 7.
On August 11, 1998, Brigadier General Gary Dillalo issued plaintiff a Letter of Reprimand ("LOR") for the same incident. Pl.'s Facts ¶ 15. Over plaintiff's objection, Brigadier General Dillalo placed the LOR in the performance portion of plaintiff's OMPF. Id. On October 16, 1998, plaintiff submitted his unqualified resignation. Def.'s Facts ¶ 9. In a letter submitted shortly after submitting his resignation, plaintiff indicated that he resigned because his "actions were not in keeping with Army tradition." Id. ¶ 10.
On August 3, 1999, after plaintiff had returned to his Army Reserve unit at Fort Totten in New York, Major General William Collins appointed a Board of Officers pursuant to Army Regulations 135-175 and 15-6 to consider the involuntary separation of the plaintiff. Def.'s Facts ¶ 11; Pl.'s Facts ¶ 17. Major General Collins appointed Colonel Edward McCarty to serve as both President and Legal Advisor of the Board. Pl.'s Facts ¶ 18. The other two Board members worked closely with Major General Collins at Fort Totten. Pl.'s Facts ¶ 19. On August 24, plaintiff's counsel made a request that Colonel McCarty recuse himself from the Board because he could not fairly and impartially serve the dual roles of President and Legal Advisor. Id. ¶ 20. On September 2, 1999, Colonel McCarty directed that a copy of his New York Judge's Review profile be faxed to plaintiff's attorney. Id. ¶ 21. On September 22, 1999, plaintiff's counsel made a request to Major General Collins to recuse Colonel McCarty from the Board. Id. ¶ 22. Major General Collins then designated Colonel McCarty to serve as Board President only and not Legal Advisor. Id. ¶ 23. During the Board proceedings, plaintiff contends that he attempted to introduce evidence challenging the underlying shoplifting incident, but the Board ruled that plaintiff could not present such evidence because the Article 15 proceedings already confirmed plaintiff's guilt. Id. ¶¶ 24-25.
The Board of Officers recommended that plaintiff be discharged from the service. A.R. 257. They further recommended that the discharge be a General Discharge under honorable conditions. Id. On November 7, 1999, Major General Collins recommended approval of plaintiff's discharge. Def.'s Facts ¶ 14. Plaintiff was discharged effective January 13, 2000.
On January 4, 2000 and February 1, 2000, plaintiff's counsel made written requests for a copy of the summarized record of the Board proceedings and a copy of the tape of the hearing. Pl.'s Facts ¶ 30. Plaintiff did not receive a copy of the summarized proceedings until some point in 2005, nearly two years after the Army Board for the Correction of Military Records ("ABCMR") made its decision. Plaintiff still has not received a tape of the proceedings.
On June 23, 2000, plaintiff applied for correction of his military records and asked to be reinstated or, in the alternative, have his discharge upgraded to Honorable. Def.'s Facts ¶ 16. On May 4, 2001, the Army Discharge Review Board ("ADRB") voted 3 to 2 to upgrade plaintiff's discharge to Honorable, but unanimously upheld the discharge as proper. Def.'s Facts ¶ 17; A.R. 245.
On February 19, 2003, plaintiff submitted an application for correction of records to the ABCMR again asking to be reinstated. Def.'s Facts ¶ 21. On October 17, 2003, the ABCMR informed plaintiff that it denied his application. Id. ¶ 23.
On September 21, 2005, plaintiff filed a complaint in this Court. The complaint contains five counts of violations of due process under the Fifth Amendment, but also includes arbitrary and capricious language from the Administrative Procedures Act ("APA"). Plaintiff's counsel mentions the Fifth Amendment once in the introduction of his cross motion for summary judgment but all of the ...