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Troy L. Wilson v. John M. Mchugh

February 9, 2012

TROY L. WILSON,
PLAINTIFF,
v.
JOHN M. MCHUGH, SECRETARY OF THE ARMY,
DEFENDANT.



The opinion of the court was delivered by: James E. Boasberg United States District Judge

MEMORANDUM OPINION

Plaintiff Troy Wilson, formerly a cadet in good standing at the United States Military Academy at West Point, tested positive for cocaine during a urinalysis conducted in January 2007. He was subsequently charged under the Uniform Code of Military Justice with having wrongfully used the drug. Wilson ultimately resigned from the USMA in lieu of disputing the charge in a trial by court-martial and received an "other than honorable" (OTH) discharge. He was also directed to repay $143,021 in education costs he had accrued prior to his discharge.

In January 2009, Wilson submitted an Application for Correction of Military Record to the Army Board for Correction of Military Records (ABCMR), requesting that he be commissioned as an officer and provided with back pay, his discharge be upgraded from OTH to Honorable, his debt be discharged, and a press release concerning the cocaine charge be removed from the USMA's website. The ABCMR denied his application, and Wilson now seeks review of that decision in this Court. Having considered the parties' Cross-Motions for Summary Judgment, the Court finds that because he voluntarily resigned instead of contesting the charge leveled against him in a court-martial, Wilson cannot challenge the underlying evidence in this forum. With respect to his remaining claims, the Court finds that the ABCMR's decision to deny Wilson's request was supported by substantial evidence and was not otherwise arbitrary and capricious. It will, therefore, grant Defendant's Motion and deny Plaintiff's.

I.Background

Wilson was appointed as a cadet at the USMA on June 28, 2004. See Administrative Record (A.R.) at 4. He performed well at the Academy, receiving assessments that placed him in the "Center of Mass -- lower half" in 2004 and "Above Center of Mass -- lower half" in 2005. See id. at 4-5. It was clear to his 2005 reviewer that Wilson was on his way to becoming "a very good team leader and an officer." Id. at 5. He was, however, subjected to discipline on three occasions during 2006: once for underage drinking, once for being absent, and once for driving an unauthorized vehicle. See id.

According to a Forensic Toxicology Drug Testing Laboratory record dated February 7, 2007, initial and verification screening tests conducted on January 11, 2007, both revealed the presence of cocaine metabolites in a urine sample provided by Wilson. See id. at 5, 51-53. The next day, "a confirmation test revealed a positive reading of 148 n[g]/ml for benzoylecgonine which was produced by the metabolism of cocaine." Id. Because the Department of Defense's cutoff for acceptable levels of benzoylecogonine is 100 ng/ml, the test led to Wilson's being charged on February 5, 2007, under the Uniform Code of Military Justice with having wrongfully used cocaine. See id. at 6; Compl., ¶¶ 25-26.

The following day, the USMA Public Affairs Office issued a press release that stated that four cadets, including Wilson, who was mentioned by name, had been charged with drug-related offenses. See A.R. at 6. The release, which was posted to the internet, further noted that the cadets would be "presumed innocent until proven guilty in trials by courts-martial" and explained that "[t]he preferring of charges against a service member is the first step in the court-martial process." Id. at 113. It also provided details about the pretrial investigation that would follow. See id. at 113-14.

On March 2, 2007, Wilson's then-attorney Ronald Gladney wrote a letter "requesting and recommending a finding that the evidence in support of the Charge and its Specification against . . . Wilson [was] not sufficient to warrant referral to a court-martial, and a recommendation that the same be dismissed." A.R. at 55. Gladney contended that the drug test had been "barely positive" and suggested that the results were "consistent" with Wilson's having merely "touch[ed] objects that at one time contained the drug." Id. He also insisted that the charge was inconsistent with Wilson's character. See id. at 56. Attached to the letter were the curriculum vitae of and a report written by Terry Martinez, a Ph.D. in Pharmacology. See id. at 61-75. Martinez identified three potential "sources of error or concern with regard to this case: 1) there [was] no record of the urine specimen collection, 2) the level of cocaine metabolites reported by the gas-chromatograph/mass spectrophotometer (GC/HS) [was] higher than the level reported by the enzyme immunoassay (EMIT) technology, and 3) the levels of reported cocaine metabolites [were] very low - all levels were below the threshold for reporting positive by the U.S. Department of Transportation, the Labor Department, the Department of Defense[,] etc. . . . ."

Id. at 73.

Despite these potential avenues for attacking the prosecution, on March 7, 2007, Wilson requested to resign from the USMA in lieu of disputing the charges in a trial by court-martial. See id. at 6, 76-77. His signed request for resignation stated that he understood that he might be discharged under "other than honorable" conditions and might be required to repay the cost of his educational expenses. See id. at 76. It also confirmed that he was resigning voluntarily and noted that he had consulted with counsel and been "fully advised . . . of the nature of [his] rights prior to, during and after an appearance before a General Court-Martial." Id. His resignation was approved and his OTH discharge made effective on June 27, 2007. See id. at 7, 78-79, 120. Wilson was also directed to repay $143,021 in education costs. See id. at 7, 81-82, 120.

In a letter dated June 27, 2007, Wilson's current counsel, David Sheldon, requested on his behalf that the February 6th press release be taken down because the Privacy Act, 5 U.S.C. § 552a, "requires that the government maintain accurate records" and "[t]he release [was] no longer accurate with respect to Mr. Wilson." Id. at 115. Nearly two years later, in January 2009, Wilson submitted an Application for Correction of Military Record to the ABCMR. See id. at 16-31. In it, he asked the ABCMR to commission him as an officer, upgrade his discharge from OTH to Honorable, discharge his debt, remove the press release from the USMA's website, "and grant any other relief necessary to effect whole relief such as back pay, allowances, . . . and other benefits the Board deems appropriate." Id. at 27.

"In the processing of [the ABCMR] case, an advisory opinion was obtained from the Office of the Deputy Chief of Staff." Id. at 7, 14-15. Colonel Paul Aswell, Chief of the Officer Division, recommended that Wilson's requests be denied. See id. at 15. Aswell noted that the "doctrine of administrative finality" precluded reconsideration of Wilson's discharge absent circumstances not present in the instant case. See id. 14. He emphasized that Wilson "voluntarily tendered his request to resign . . . in lieu of trial by court-martial" and that his request acknowledged that his discharge might be characterized as OTH. See id. at 14-15. In addition, he recommended denial of Wilson's request that the press release be removed. See id. at 15.

The ABCMR issued its decision officially denying Wilson's application on September 9, 2009. See id. at 11. It stressed that the DOD had properly applied its 100 ng/ml benzoylecgonine limit in preferring cocaine charges against Wilson. See id. at 10. In light of the fact that Wilson's request for resignation was "voluntary, administratively correct, and in compliance with applicable regulations," it found no basis to reconsider his OTH discharge or cancel his debt. See id. at 10-11. Neither did it grant his request to have the press release removed from the internet. See id. at 10.

On February 4, 2010, Wilson filed a Complaint that initiated the instant action. He seeks review of the ABCMR's decision under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. Both parties have now filed Cross-Motions for Summary Judgment.

II.Legal Standard

Summary judgment may be granted if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is "material" if it is capable of affecting the substantive outcome of the litigation. Holcomb, 433 F.3d at 895; Liberty Lobby, Inc., 477 U.S. at 248. A dispute is "genuine" if the evidence is such that a reasonable jury could return a ...


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