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Babuto M. Rudo v. Pete Geren

March 24, 2011

BABUTO M. RUDO, PLAINTIFF,
v.
PETE GEREN, SECRETARY OF THE ARMY, DEFENDANT.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Re Document Nos.: 9, 13

MEMORANDUM OPINION

DENYING IN PART AND HOLDING IN ABEYANCE IN PART THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT;GRANTING IN PART AND HOLDING IN ABEYANCE IN PART THE PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

This matter comes before the court on the parties' cross-motions for summary judgment. The plaintiff, a former servicemember, seeks judicial review pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq., of the decision by the Army Board for Correction of Military Records ("ABCMR") regarding the characterization of his discharge from the Army in 1968 as based on unsuitability grounds. The defendant argues that there is sufficient evidence in the record to support the ABCMR's holding. Because the ABCMR's decision did not address the plaintiff's due process claim, the court grants in part the plaintiff's cross-motion for summary judgment and remands that claim to the ABCMR. Further, because adjudication concerning the plaintiff's other claims is more appropriately reserved until after the ABCMR has decided the plaintiff's due process claim, the court holds in abeyance its ruling on the other plaintiff's remaining APA claims.

II. BACKGROUND

A. Regulatory Framework

Under the Army Regulations in place in 1968, an Army soldier could be discharged upon a finding that he was "unsuitable" for further military service. See Admin. R. ("A.R.") at 66 (Army Regulation ("A.Reg.") 635-200, 635-212 ¶ 1). A discharge for unsuitability was proper if the soldier exhibited any one of the following: "(1) Inaptitude, (2) Character and behavioral disorders, (3) Apathy (lack of appropriate interest), defective attitudes and inability to expend effort constructively, (4) Alcoholism, (5) Enuresis (bedwetting), or (6) Homosexuality." A.R. at 67 (A.Reg. 635-212 ¶ (6)(b)).

Before removing a soldier on "unsuitability" grounds, the Army was required to establish that: (1) the solider was unlikely to develop "sufficiently to participate in further military training and/or become a satisfactory soldier" and (2) the soldier met the "retention medical standards" in place at the time. See id. at 66 (A.Reg. 635-212 ¶ 3(b)). To satisfy these requirements, a soldier's unit commander was required to refer the soldier for a medical evaluation and provide the medical examiners with "[s]ufficiently detailed information about the reasons for considering the individual . . . unsuitable" so that they would have a thorough understanding of the contemplated action. Id. at 68 (A.Reg. 635-212 ¶ 8). If the medical examiners determined that the solider met "retention medical standards," i.e. that he was medically fit for further military service, his discharge for unsuitability would be approved and the soldier would be sent back to his commanding officer for further processing of his discharge. Id. at 69 (A.Reg. 635-212 ¶ 9). If, however, the soldier was determined to be medically unfit for service, the discharge process pursuant to "unsuitability" grounds was halted. Id. (A.Reg. 635-212 ¶ 9).

Once the soldier was medically cleared for an unsuitability discharge, the commanding officer was required to provide him with the "basis of the contemplated separation and its effect." Id. (A.Reg. 635-212 ¶ 10(a)(1)-(3)). The "effect" of a soldier's separation was governed by the characterization of his service. Pl.'s Cross-Mot. for Summ. J. ("Pl.'s Cross-Mot."), App. at 13 (A.Reg. 635-200 ¶ 1.8) (Separation as it Affects the Individual). In 1968, a soldier's service could be characterized as one of five general types of discharges, ranging from the most satisfactory characterization of service to the least satisfactory: "(1) Honorable, (2) General

[u]nder honorable conditions, (3) Undesirable [u]nder conditions other than honorable, (4) Bad Conduct [u]nder conditions other than honorable, (5) Dishonorable." Id., App. at 12 (A.Reg. 635-200 ¶ 1.5). An unsuitability separation could be characterized as either an "Honorable or General discharge," depending on the soldier's service record. A.R. at 66 (A.Reg. 635-212 ¶ 4(b)). Either characterization entitled a soldier to "full Federal rights and benefits," although "an undesirable or bad conduct discharge may or may not deprive the individual of veterans' benefits administered by the Veterans Administration." Pl.'s Cross-Mot., App. at 13 (A.Reg. 635-200 ¶ 1.8).

The commanding officer overseeing the discharge process was required under Army regulations to explain to the soldier his rights. A.R. at 69 (A.Reg. 635-212 ¶ 10(a)(1)-(3)). These rights included the right of the soldier to present his case before a board of officers, to submit statements on his own behalf and to be represented by counsel. Id. Alternatively, the soldier could waive these rights in writing. Id. A soldier who chose to waive his rights was required to submit a signed statement indicating that he had "been advised of the basis for his contemplated separation and its effect and the rights available to him." Pl.'s Cross-Mot., App. at 9 (A.Reg. 635-212 (Waiver Form)). This statement, in relevant part, read:

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 issuance of an undesirable discharge 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.

Id. After the soldier had been adequately informed of his rights under the applicable regulations, and either exercised or waived those rights in a signed statement, he was issued a final discharge certificate stating "the specific reason and authority for [his] discharge," effectively ...


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