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Bors v. Allen

April 15, 2009

CW0-2 DARIUS BORS, PLAINTIFF,
v.
ADMIRAL THAD W. ALLEN ET AL., DEFENDANTS.



The opinion of the court was delivered by: Richard W. Roberts United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Darius Bors, a Chief Warrant Officer in the United States Coast Guard ("USCG"), brings this action against various defendants including the Commandant of the USCG to challenge his discharge. Bors seeks an injunction*fn1 preventing the USCG from discharging him from service on April 16, 2009. Because Bors has not shown a likelihood of success on the merits and the circumstances do not otherwise warrant granting Bors relief, his motion will be denied.*fn2

BACKGROUND

Bors served as an enlisted member of the USCG from March 6, 1990 through June 1, 2007. (Compl. ¶ 5.) In 2007, Bors was offered an appointment as a permanent regular Chief Warrant Officer. Bors accepted the offer on June 1, 2007. (Compl. ¶ 6.) That December, while he was on an approved leave from duty, Bors went to a medical clinic to fill a prescription. While he was in the treatment room, a medical corpsman and a Lieutenant Commander questioned Bors about alcohol consumption and accused him of being drunk on duty. (Compl. ¶¶ 11-12.) Bors denied that he was drunk and denied consuming alcohol. However, he provided a blood sample to the medical corpsman and the Lieutenant Commander that revealed that he had recently consumed alcohol. (Compl. ¶¶ 12-13.) Bors was charged with three violations of the Uniform Code of Military Justice ("UCMJ"): one count of making a false statement to a Lieutenant Commander in violation of Article 107; one count of being drunk while on duty in violation of Article 112; and one count of destroying military property in violation of Article 108. (Compl. ¶ 13.) After an investigation, the charges alleging violations of Articles 108 and 112 were dropped, while a charge alleging that Bors violated Article 92 of the UCMJ by failing to obey a lawful order was added. The charge alleging a violation of Article 92 was based upon the fact that Bors had previously been ordered to refrain from consuming alcohol, as part of a treatment and aftercare plan. (Compl. ¶¶ 15-16.)

Bors did not invoke his right to be tried by court-martial. Rather, he agreed to engage in "non-judicial punishment" under Article 15 of the UCMJ, namely, a hearing before his Commander. (Compl. ¶ 17.) At the Article 15 hearing, the Commander dismissed the charge against Bors under Article 92, but found by a preponderance of the evidence that Bors violated Article 107 by making a false official statement to the medical officer and a senior officer. Bors was awarded a Letter of Admonition and a "30-day restriction," which was suspended for six months. (Compl. ¶ 18.)

The results of the Article 15 hearing were forwarded to the Commandant Guard Personnel Command ("CGPC"). Bors' Commanding Officer, Captain R.R. O'Brien, recommended terminating Bors' appointment as Chief Warrant Officer for "unsuitability due to repeated violations of his alcohol aftercare program and associated violation of the UCMJ." (Compl. ¶ 20; Defs.' Opp'n to Pl.'s Mot. for TRO in Form of a Stay Pendente Lite ("Defs.' Opp'n") at 3.) Captain O'Brien explained:

CWO Bors was determined to be alcohol dependent on two separate occasions after self-referring for alcohol abuse twice. He was required to abstain from drinking indefinitely as a condition of his aftercare plan.

Following the second diagnosis, [Bors] was questioned about his drinking on numerous occasions due to the smell of alcohol apparently emanating from him and his suspect behavior while on duty. In each case he denied drinking alcohol. While on leave but in the Sector New York clinic, he was again confronted regarding the apparent odor of alcohol. The medical officer, concerned about CWO Bors well being, ordered a blood test to determine his alcohol consumption level despite CWO Bors' repeated denials of drinking. Contrary to his denials, which amounted to false official statements, CWO Bors was found to have consumed alcohol and later admitted to drinking the night prior to the blood test. A UCMJ action, limited to the specific events of Dec. 18, 2007, was taken against CWO Bors. A further review of the member's record shows a pattern of behavior which is inconsistent with that demanded of a chief warrant officer. . . . Having previously been found to be dependent on alcohol and having twice failed to adhere to counseling and prescribed aftercare treatment (i.e. abstention from alcohol consumption indefinitely) CWO Bors is subject to separation in accordance with reference (a) Chapter 20.B.2.1. [of the USCG Personnel Manual].

(Pl.'s Mem. in Supp. of Pl.'s Mot. for TRO in Form of a Stay Pendente Lite ("Pl.'s Mem."), Ex. 5*fn3 at 1-2.) The USCG convened a Special Board, consisting of a panel of three officers who reviewed Captain O'Brien's recommendation to terminate Bors' warrant officer appointment under Article 12.A.20*fn4 of the USCG Personnel Manual. (See Pl.'s Mem. Ex. 7 at 1-2.) The Special Board sent a Report to the Secretary of the United States Department of Homeland Security, Michael Chertoff, recommending terminating Bors' appointment as a Chief Warrant Officer. (See Pl.'s Mem. Ex. 8 at 1-2.) The Special Board stated that Bors' violation of Article 107 combined with an alcohol related incident that occurred in 2006, "cast doubt on [Bors'] integrity and moral qualifications. [Bors] demonstrated a significant breech [sic] of Coast Guard's Core Values by making false statements and [failing] to adhere to the policies and provisions of Article 20.B of the Personnel Manual." (Id. at 4-5.) The Special Board further recommended a "full and careful review of the record and Article 20.B of the Personnel Manual" if Bors were to apply for reenlistment. (Id. at 5.)

Secretary Chertoff approved the Special Board's recommendation. (See Pl.'s Mem. Ex. 9.) Commander James E. Andrews wrote to Bors informing him of the decision and explaining that:

In accordance with [10 U.S.C. § 1165], a warrant officer who is separated is entitled, if eligible, to separation pay under [10 U.S.C. § 1174]. [Title 10 of the U.S. Code] authorizes an opportunity to request to re-enlist under Section 515, however the nature of your circumstances, relative to Chapter 20 of [the USCG Personnel Manual] precludes your retention on further active duty. Accordingly, you will be discharged from the Coast Guard.

(Compl. ¶ 23; Pl.'s Mem. Ex. 10 at 1.) Bors was notified that he would be discharged from the USCG on January 19, 2009. (See Pl.'s Mem. Ex. 12 ("Bors Aff.") at 1-2.)

On January 14, 2009, Bors filed his complaint in this case, along with a motion for a temporary restraining order ("TRO") seeking an order that would prevent the USCG from discharging him on January 19, 2009. That day, the USCG agreed not to discharge Bors until at least 90 days after the date on which he received transition assistance counseling, and Bors agreed to withdraw his motion for a TRO. In addition, the defendants agreed to allow Bors to request reenlistment in accordance with 10 U.S.C. § 515. (See Notice of TRO Resolution, Docket Entry # 5, January 16, 2009.) On February 13, 2009, Bors requested reenlistment at the grade he held prior to his appointment as Chief Warrant Officer. Bors' request was denied by the Chief of Enlisted Personnel. (See Defs.' Opp'n at 6.)

On April 7, 2009, Bors filed the instant motion for an order preventing the defendants from discharging him on April 16, 2009. Bors argues that the defendants' denial of his request for re-enlistment entitled him to a "reenlistment board under the provision of the Coast Guard Personnel Manual, . . . Chapter 12," and that if the basis for the denial of his reenlistment is the "failure of alcohol rehabilitation," then Bors is entitled to a "separation board." (Pl.'s Mem. at 9.) The defendants oppose, arguing that Bors cannot show irreparable harm because Bors will receive more than $84,000 in separation pay and can be reinstated with back pay if the USCG loses the case, and because Bors is not likely to win ...


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