The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
This matter is once again before the Court on defendants' motion to dismiss plaintiff's first and second claims, and on the parties' cross-motions for summary judgment. Plaintiff, a Vietnam veteran, brought this action under the Administrative Procedures Act ("APA"), 5 U.S.C. § 701, et seq., for judicial review of the denial by the Army Board for Corrections of Military Records ("ABCMR" or "the Board") of his pro se application to upgrade his other than honorable discharge from the Army to an honorable or general discharge, and subsequent ABCMR decisions denying his repeated requests for reconsideration. In a Memorandum Opinion dated August 3, 2006, the Court upheld the ABCMR's September 6, 2001 initial decision, but remanded the Board's May 16, 2002 denial of plaintiff's first request for reconsideration because the Court found that the Board had failed to consider a potentially meritorious argument raised by plaintiff. See Roberts v. Harvey, 441 F. Supp. 2d 111, 121-22 (D.D.C. 2006). Because it remanded the Board's first denial of reconsideration, the Court did not address the arguments previously raised by plaintiff relating to his three subsequent requests for reconsideration. On remand, the ABCMR issued an opinion again denying plaintiff's first request for reconsideration. Plaintiff now challenges that decision, and he also challenges the three denials of reconsideration that were not previously addressed in the Court's prior opinion. For the reasons explained herein, plaintiff's cross-motion for summary judgment will be denied, and defendants' motion will be granted.
The lengthy factual and procedural history of this case was thoroughly discussed in the Court's prior opinion and need only be summarized briefly here. Plaintiff enlisted in the Army in 1967 for a period of three years, and he served overseas in Vietnam and Korea. (A.R. 302, 249, 34, 60.) During his time in the Army, plaintiff received several non-judicial punishments for misconduct, and he was twice convicted by special courts-martial for a variety of offenses. (A.R. 239, 242, 244, 251, 325.) On May 13, 1969, while plaintiff was serving a six-month sentence of confinement on his second court-martial conviction, he agreed to be discharged from the Army by reason of unfitness under the provisions of Army regulation 635-212. In doing so, he 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 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, Ex. D.) Plaintiff was then discharged from the Army on July 22, 1969, and his discharge was classified as one "Under Conditions Other Than Honorable" ("UCOTH") (A.R. 49), which constitutes an undesirable discharge status. See Roberts, 441 F. Supp. 2d at 115 n.3.
On May 10, 1971, plaintiff applied to the Army Discharge Review Board, which is distinct from the ABCMR, for an upgrade to his discharge. (A.R. 237.) That request was denied in 1972. (A.R. 231.) Approximately thirty years later on May 29, 2001, plaintiff submitted to the ABCMR a pro se application for an upgraded discharge. (A.R. 93.) He asserted that he had been diagnosed as suffering from combat-related post-traumatic stress disorder, that this condition had been overlooked or misdiagnosed at the time of his military service, and that his lack of treatment for this condition ultimately resulted in his incarceration and undesirable discharge (rather than a medical discharge). (A.R. 96-97.) The ABCMR denied plaintiff's application on September 6, 2001, finding, inter alia, that there was no evidence that plaintiff was suffering from post-traumatic stress disorder at the time of his discharge, and that he had failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice. (A.R. 83-90.)
On December 26, 2001, plaintiff submitted his first of four applications for reconsideration of the ABCMR's September 6, 2001 decision. (A.R. 71-77.) In a three-page typewritten statement, he asserted that at the time of his discharge, there was an "on going [sic] practice in the Military to bar all black veterans from any benefits," and that he himself had encountered racial prejudice and discrimination, that there had been an "oversight by the Doctors in their Physical, and Medical evaluation," and that "[a] tremendous amount of psychological trauma . . . led to a classification of Unfitness." (A.R. 72.) He also alleged that he agreed to initiate the procedures for his discharge and waive his rights after being approached in the stockade by an Army lawyer because he was "under duress" at the time, and because the lawyer "offered [him] a way out of the stockade" and told him that he would "most likely receive a General Discharge under Honorable Condition[s]." (A.R. 73.) In fact, it was clear under the regulations in effect at the time that a serviceperson in plaintiff's circumstances would almost certainly receive an unfavorable discharge. See Roberts, 441 F. Supp. 2d at 115.
Plaintiff again applied to the ABCMR for reconsideration a second and third time on June 10, 2002 and December 27, 2002. (A.R. 48-54, 46.) His June 10 application included copies of his discharge, the psychiatric clearance for his discharge proceeding, a copy of his court-martial conviction, photos of several civilian master plumber licenses that he obtained subsequent to his discharge, an enrollment form from an Alabama community college, and a one-page typewritten statement describing his perception of racial prejudice in the Army. (A.R. 48-54.) His December 27 application included no attachments. (A.R. 46.) The Board rejected both applications in letters dated January 21, 2003 and July 15, 2003, which recited the regulations in place at the time involving requests for reconsideration and stated that the staff of the Board had determined that the evidence presented in his applications did not warrant resubmission to the Board. (A.R. 45, 47.) Finally, plaintiff submitted a fourth application for reconsideration on June 4, 2004, this time with the assistance of legal counsel. (A.R. 2.) According to plaintiff, his fourth application raised a number of new facts and arguments not previously presented to the Board (id.), including an argument that the Army failed to follow its own regulations in effect at the time of his 1969 discharge. (See A.R. 21-25.) This final application was returned by the staff of the Board without action on March 17, 2005. (A.R. 1.)
Plaintiff then filed this lawsuit in December 2005, challenging the ABCMR's initial September 6, 2001 decision, as well as the four subsequent denials of his reconsideration requests. In its August 3, 2006 opinion, the Court denied plaintiff's challenges to the ABCMR's initial decision, but remanded the case to the Board to reconsider the May 16, 2002 denial of plaintiff's first application for reconsideration because it found that the Board failed to address plaintiff's potentially meritorious argument "that the 1969 proceeding leading to his discharge was fatally defective because plaintiff was under duress at the time and was misled into waiving his rights to counsel and a hearing based upon arguably erroneous advice of counsel." See Roberts, 441 F. Supp. 2d at 121. Because it remanded the May 16, 2002 decision to the Board, the Court did not address any of plaintiff's arguments regarding his three subsequent applications for reconsideration. Id. at 122 n.14.
On remand and consistent with this Court's remand order, the ABCMR limited its review to the issue of plaintiff's waiver of his right to counsel and a hearing, "as clarified" by plaintiff's counsel in his June 2004 reconsideration request. (A.R. 367.) In its December 5, 2006 decision, the Board did not "address issues [or] relief requests from [plaintiff] or his counsel that were previously addressed by the Board with which the [C]court took no issue." (Id.) It concluded that there was insufficient evidence to support plaintiff's claims that he was under duress and relied on the erroneous advice of counsel when he waived his rights in connection with his 1969 discharge. (A.R. 369.)
In his pending motion, plaintiff argues that the ABCMR's decision on remand violates the APA because its explanation of its review of the waiver issue "inaccurately describe[d] the record" and was "irrational." (Pl.'s Mot. at 32.) He also argues that because the Board limited its review to the waiver issue noted by the Court, it failed to address the remainder of the issues raised by plaintiff in his original December 26, 2001 submission. (Id. at 35.) Specifically, plaintiff claims that the Board has ignored his allegations that (1) his "Army difficulties" were the result of racial prejudice; (2) the psychiatric clearance for his discharge proceeding was based on an incomplete medical evaluation, and (3) his unfitness determination was unfairly based on his actions that were the result of psychological trauma that he had suffered in the Army. (Id. at 36.) Lastly, he argues that the Board's December 5, 2006 decision on remand was arbitrary and capricious because it relied on a 1969 bar to reenlistment that he claims was impermissibly based on a pending court martial proceeding in which he should been afforded a presumption of innocence. (Id. at 38.)
Plaintiff also reprises the arguments that the Court previously declined to consider relating to the three subsequent reconsideration decisions dated January 21, 2003, July 15, 2003, and March 17, 2005. Plaintiff's arguments regarding these three decisions involve the ABCMR regulations governing applications for reconsideration, and an opinion issued on September 7, 2004 by Judge Ricardo M. Urbina of this Court in Lipsman v. Secretary of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). Paragraph 2-15 of Army Regulation 15-185, 32 C.F.R. § 581.3(g)(4)(ii) (Feb. 29, 2000), in effect at the time that plaintiff submitted all of the applications for reconsideration at issue in this litigation, provided that:
(a) If the ABCMR receives the request within 1 year of the ABCMR's action and if the ABCMR has not previously reconsidered the matter, the ABCMR staff will review the request to determine if it contains evidence (including, but not limited to, any facts or arguments as to why relief should be granted) that was not in the record at the time of the ABCMR's prior consideration. If new evidence has been submitted, the request will be submitted to the ABCMR for its determination of whether the new evidence is sufficient to demonstrate material error or injustice. If no new evidence is found, the ABCMR staff will return the application to the applicant without action.
(b) If the ABCMR receives the request more than 1 year after the ABCMR's action or after the ABCMR has already considered one request for reconsideration, the ABCMR staff will review the request to determine if substantial relevant evidence is submitted showing fraud, mistake of law, mathematical miscalculation, manifest error, or the existence of substantial relevant new evidence discovered contemporaneously or within a short time after the ABCMR's original consideration. If the ABCMR staff finds such evidence, it will be submitted to the ABCMR for its determination of whether a material error or ...