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Girard C. Chamness v. John M. Mchugh

September 30, 2011

GIRARD C. CHAMNESS, PLAINTIFF,
v.
JOHN M. MCHUGH, SECRETARY OF THE ARMY, DEFENDANT.



The opinion of the court was delivered by: Judge Beryl A. Howell

MEMORANDUM OPINION

Plaintiff Girard Chamness, a former Staff Sergeant in the Illinois Army National Guard, has filed this case seeking to correct alleged errors in his military record. In February 2003, after twenty years in the National Guard, the Qualitative Retention Board ("Retention Board") reviewed the plaintiff's service record pursuant to Army Regulation ("Army Reg.") 135-205 to determine if the plaintiff should be retained for continued military service. Unfortunately, the plaintiff was not selected, and for the past eight years the plaintiff has sought to overturn the Retention Board's 2003 decision. The plaintiff now challenges the Army Board for Correction of Military Records' ("ABCMR") decision to affirm the Retention Board's ruling, arguing that the ABCMR's decision was arbitrary, capricious, unsupported by evidence, and contrary to law in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 701, et seq. Pending before the Court are cross motions for summary judgment filed by the plaintiff and the defendant. Having reviewed the administrative record, the Court concludes that the ABCMR's decision did not violate the APA. Accordingly, the defendant's motion for summary judgment is granted, and the plaintiff's motion for summary judgment is denied.

I.BACKGROUND

The facts of this case are largely undisputed. In 1981, plaintiff Girard C. Chamness enlisted in the Illinois Army National Guard. Administrative Record ("A.R."), at 7. Five years later, in 1986, the plaintiff was called to Active Guard Reserve ("AGR") status. Id. In May 1989, the plaintiff was promoted to the rank of Sergeant, and later rose to the rank of Staff Sergeant. Id. at 4, 19-20. During his military career, the plaintiff received several awards and commendations, and had a history of successful evaluation report ratings, with some exceptions. Id. On repeated occasions, plaintiff's evaluators assigned him an overall success rating of 3 out of 5. Def.'s Stat. of Facts, ECF No. 4, ¶ 2; see also A.R. 34, 38, 40, 42, 46, 48, 50, 61, 63, 67.Throughout his career, however, the plaintiff had difficulty keeping his weight and body fat within Army Regulation standards. A.R. 4, 40, 61, 92, 284, 288. Indeed, the plaintiff failed Army Physical Fitness Tests ("APFT") on August 4, 2000, May 23, 2001, and May 23, 2002. Id. at 284-87.

On September 5, 2001, the Departments of the Army and Air Force, Illinois National Guard, notified the plaintiff that he would be eligible for retirement pay at the age of 60 because he had completed twenty years in the Illinois National Guard. Id. at 8. On December 14, 2002, the plaintiff was informed that pursuant to Army Reg. 135-205*fn1 the Retention Board would review his personnel records on February 25, 2003. Id. In preparation for this review, a summary of the plaintiff's personnel record was created, indicating that although the plaintiff had failed an APFT, his commanding officer recommended that he be retained. A.R. 81, 83. The plaintiff reviewed the record sent to the Retention Board, and stated in his Enlisted Qualitative Retention Personnel Summary: "I am currently flagged for overweight and [Physical Training]. I am currently under a doctor's care for a planter's [sic] wart on my left foot and have a profile not to run. When the planter's [sic] wart is done being treated and has healed, I will be able to start working on physical fitness training, which will allow me to meet both the physical fitness standards and weight standards." Id. The personal summary sent to the Retention Board indicated that in addition to failing APFTs, the plaintiff weighed 221 pounds and had 30.81% body fat. Id. at 81.

On February 23, 2003, the Retention Board reviewed the plaintiff's record. Compl. ¶ 32. A few months later, on April 10, 2003, the Illinois National Guard notified the plaintiff by memorandum that the Retention Board had not selected him for retention. A.R. 9, 69. The Retention Board is not required to issue a written justification of its decisions pursuant to Army Reg. 135-205, and no such justification was provided in this instance. Compl. ¶ 34.

On June 5, 2003, the plaintiff requested that the Illinois Army National Guard Inspector General ("IG") investigate the circumstances surrounding his non-retention. See A.R. 70. Specifically, the plaintiff alleged that the leadership of his unit had failed to uniformly and accurately enforce the weight and Physical Fitness Test standards by not conducting required monthly weigh-ins and by selectively applying the weight and body fat standards to the plaintiff. See Compl. ¶ 43.

In response to the plaintiff's request, the IG initiated an inquiry and completed a report, which agreed with most of the plaintiff's allegations regarding his unit leadership's failure to enforce the weight and Physical Fitness Test standards. A.R. 122-131. In particular, the IG noted that one of the APFTs that the plaintiff allegedly failed had never actually occurred. Id. at 128. Nonetheless, the IG concluded that the plaintiff should have been separated for failing an APFT on May 23, 2001. Id. In addition, the IG noted that the plaintiff had been selected for discharge not only because of poor weight control ability, but also because of his poor leadership skills, mediocre Non-Commissioned Officer Evaluation Reports ("NCOER"), and his poor physical fitness. Id.

The plaintiff was honorably discharged, effective July 3, 2003. Id. at 9. At the time of his discharge, the plaintiff had accrued twenty-one years and ten months towards a non-regular retirement (a Reserve retirement). Id. at 30. The plaintiff served seventeen years on Active Guard/Reserve status, which was creditable as time served on active duty. Id. at 9. The plaintiff would have been required to serve three more years in an active duty or Active Guard/Reserve status to obtain a regular (active duty) retirement. Id. at 18. After his commendable service to his country, the plaintiff was separated with full separation pay, at ten percent, based on 17 years, 3 months, and 22 days total active federal service. Id. at 9.

On August 5, 2004, the plaintiff applied for reconsideration to the ABCMR, contending, inter alia, that the Retention Board had reviewed inaccurate and incomplete weight control information for the plaintiff and, consequently could not accurately determine his progression concerning his weight control. Compl. ¶ 42-43. In addition, the plaintiff argued that the IG unfairly suggested that he should have been selected for discharge in 2001. Id. at ¶ 43. To rectify these alleged errors, the plaintiff requested that the ABCMR reinstate him with back pay and correct his military record to show no break in service. A.R. at 9. The ABCMR, however, notified the plaintiff that he had not exhausted his administrative remedies. Id.

On May 18, 2006, the plaintiff again petitioned the ABCMR requesting, inter alia, reinstatement in the Illinois National Guard, receipt of all back pay, and correction of his record to show no break in service. Id. at 9, 139. On March 2, 2007, the ABCMR received an advisory letter from the Army National Guard Bureau recommending that the ABCMR grant the plaintiff the requested remedies. Id. at 136. Contrary to this recommendation, on April 5, 2007, the ABCMR again informed the plaintiff that he had to exhaust the required administrative remedies, which he still had not done, before the ABCMR could act on his application. Id. at 139. Specifically, the plaintiff needed to seek relief from the Illinois Adjutant General or the Chief of the Army for the National Guard. Id. The ABCMR therefore returned the plaintiff's application without prejudice. Id.

On June 21, 2007, the plaintiff filed a request with the Illinois Adjutant General to reinstate him in the Illinois National Guard. Id. at 9. On February 12, 2008, the Adjutant General offered to settle the plaintiff's claim by affording him the opportunity to re-enlist in the Illinois National Guard at his previous rank and grade, with an Active Guard/Reserve position in his previous career specialty, contingent upon the plaintiff dismissing the ABCMR application, and plaintiff's compliance with all reenlistment qualifications, including the weight standards. Id. at 9-10, 141. The plaintiff responded by claiming that he was entitled to full relief. Compl. ¶ 56. The Adjutant General then advised the plaintiff that it could not grant him his requested relief. A.R.at 10.

Having exhausted his administrative remedies, the plaintiff returned to the ABCMR to pursue his application, which the ABCMR denied on the merits on August 29, 2008. Id. at 1-14. In its decision, the ABCMR stated that the Retention Board initially "reviewed the [plaintiff]'s entire service record, including his evaluation reports, awards and decorations, and other factors having a bearing on a Soldier's future performance and contribution to a unit. The 'other factors' may have included the APFT failures and weight issues; but, there is no evidence that the applicant's APFT failures and weight issues were the only reasons the applicant was not selected for retention." Id. at 12. Having found no error or injustice in the plaintiff's military record, the ABCMR denied the plaintiff's petition. Id. at 13-14.

On December 2, 2009, the plaintiff filed a Complaint with this Court, asserting that the ABCMR decision not to correct his record was arbitrary, capricious, an abuse of discretion, unsupported by substantial evidence, or otherwise contrary to law, in violation of the Administrative Procedure Act, 5 U.S.C. § 701, et seq. Compl. ¶ 70. The plaintiff also claimed that the ABCMR's actions violated his due process rights because "[t]he Army failed to comply with ...


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