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Hardy v. McHugh

March 10, 2010


The opinion of the court was delivered by: James Robertson United States District Judge


Plaintiff is a retired United States Army Reserve officer. He sues the Secretary of the Army,*fn1 alleging, in four counts: violations of the Privacy Act, 5 U.S.C. § 552a, because the Army (1) maintained an inaccurate General Officer Memorandum of Reprimand ("MOR") in his file; and (2) allowed him to suffer adverse determinations based on the inaccurate MOR; and violations of the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 702, et. seq., because (3) the Army Board for Correction of Military Records ("ABCMR") arbitrarily and capriciously denied his application to correct the inaccurate MOR; and (4) the ABCMR arbitrarily and capriciously failed to recommend him for consideration by a Special Selection Board ("SSB").*fn2 Hardy requests that this Court order the Army to remove the MOR from his record, order the Army to determine if he should be considered for promotion by an SSB, and award him damages, attorneys' fees, and costs.

Factual Background

Hardy served in the Army for more than 35 years. While on active duty, he also pursued a bachelor's degree at a total of six different institutions. AR 78. One of those institutions was Hawaii Pacific University, where he took courses from late 1995 to early 1997. Compl. ¶ 31. Believing that he had completed the requirements necessary to qualify for a bachelor's degree in anthropology, Hardy asked HPU to send his transcript to the Army for inclusion in his records. AR 102. At some point after he made that request, the degree was listed on Hardy's official Army records. Subsequently, the Army selected Hardy to attend the Army's National Defense University, where he earned a master's degree.

In fact, Hardy did not have a bachelor's degree from HPU. He asserts that he discovered the error only in March 2003, when the Army conducted an informal investigation of him under Army Regulation 15-6, after his ex-wife made entirely unrelated allegations about security clearance violations. AR 50-52. The Army found those allegations to be baseless, but the investigation uncovered questions about Hardy's college degree.

While the investigation was on-going, the Army reassigned Hardy from a new post in Colorado Springs to a temporary position in Virginia. AR 103. Believing that he would eventually make his way back to Colorado Springs, Hardy left his possessions - including his academic records - behind. AR 103. When an investigator asked for proof of his HPU degree, Hardy answered that his records were in storage, and instead requested an official transcript from the university. AR 54, 103. HPU was slow to respond to his request, but eventually notified him that he had not completed the degree. AR 7. The Army emphasizes that, during the investigation, Hardy represented that he had documentation in his stored belongings in Colorado, AR 88, 90-1, but he was never able to produce it. AR 52.

In his final report, the investigator made the following findings: Hardy (1) did not have a bachelor's degree of science in anthropology from Hawaii Pacific University when he applied for the 2000 USAR Professional Development Education Board (PDE); (2) was reckless, by his own admission, in allowing the entry about his degree to remain on his Officer Record Brief while his application was under consideration by the PDE (even though his conduct was not clearly intentional, it amounted to a negligent misrepresentation to the board); (3) was reckless in allowing the degree entry to remain on the Officer Record Brief he submitted to Colonel Robinson for use by the National Defense College, with the result that he was awarded a master's degree in error; (4) did not use this ORB for any other competitive board; (5) did not correct the misrepresentation after the Army's investigation (the failure to correct amounting to an intentional misrepresentation); (6) knew he could not substantiate the degree; and (7) would not have been selected for the National War College if it had been known that he did not have a bachelor's degree. AR 52.

As a result of the 15-6 findings, the Army issued an MOR on August 15, 2003, reprimanding Hardy for repeatedly misrepresenting his educational credentials. The MOR stated,

"[Y]ou repeatedly misrepresented your educational credentials for official purposes. Your misrepresentations resulted in your selection for resident senior service college attendance and caused the National Defense University (NDU) to incorrectly issue a masters degree to you.... [Y]ou misrepresented your credentials to secure yourself a highly coveted resident military education opportunity and credential." AR 60.

Hardy immediately disputed the investigator's findings and the MOR, arguing that his mistake was not intentional and insisting that he did not specifically apply to the NDU, rather he applied to "Any Resident School," some of which did not require a bachelor's degree for admission. AR 62. He did acknowledge that he was reckless in failing to correct the error. Id.

In April 2004, the Army referred the case to a Board of Inquiry to determine whether Hardy should be separated from the Army. AR 71-72. The BOI determined that Hardy's derelict failure to review the academic credentials in his file resulted in a "negligent misrepresentation" of his educational level. The BOI found that this conduct demonstrated poor judgment in "not aggressively pursuing confirmation of the academic entries contained in his ORB," but that it was not misconduct requiring separation from the Army. AR 83.

After the BOI decision, the MOR remained in Hardy's file. Hardy was not selected for promotion to the rank of colonel in 2004, 2005 and 2006. AR 67-69. After he was notified of his 2004 non-selection, he requested that the Department of the Army Suitability Evaluation Board ("DASEB") transfer his MOR to the restricted part of his file. The DASEB denied Hardy's initial request, but in November 2007, after two more non-selections, the DASEB granted Hardy's request to transfer the MOR to the restricted part of his file. AR 142.

On December 31, 2007, Hardy was released from active duty and transferred to the United States Army Reserve Control Group. AR 9.

In January 2008, Hardy filed an application with the ABCMR, requesting that the MOR be voided, that he be considered for promotion to colonel by a SSB, and that he receive additional pay, back pay and credit for service. AR 13-40. The ABCMR denied his application, finding that the MOR was neither factually incorrect nor inaccurate. The ABCMR reasoned that, even though the 15-6 investigation and the BOI had both found it unclear whether ...

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