The opinion of the court was delivered by: Paul L. Friedman United States District Judge
Plaintiff John Paul Charlton seeks judicial review of the decision of the Air Force Board for Correction of Military Records ("AFBCMR") to deny his application to correct his Air Force records. Defendant Michael Bruce Donley, as Secretary of the Air Force, has filed a motion for summary judgment. Mr. Charlton opposed that motion and filed a cross-motion for summary judgment. Upon consideration of the parties' papers, the relevant legal authorities, and the entire record in this case, the Court will grant in part and deny without prejudice in part the Air Force's motion, will deny in part and deny without prejudice in part Mr. Charlton's cross-motion, and will remand the AFBCMR's decision to the agency for further consideration in accordance with Part III(H) of this Opinion.*fn1
Mr. Charlton is a former United States Air Force Academy cadet who entered the Academy in June of 1999. AR at 6. In the fall of 2002, an instructor accused him of cheating by copying another student's work and of lying. Id. After a hearing, the Wing Honor Board ("WHB") found that Mr. Charlton cheated by copying another's work, and he was disenrolled from the Academy. Id. The Air Force also ordered him to reimburse it for the cost of his tuition, which amounted to approximately $136,478. Compl. ¶ 69. Mr. Charlton then applied to the AFBCMR to have his record corrected. AR at 19. Specifically, he asked the Board to remove the honor violation, give him a diploma from the Academy and a commission, and remove his obligation to repay the cost of tuition. Id. This application was denied on October 17, 2005. Id. at 15. Mr. Charlton subsequently filed a complaint with this Court against the Secretary of the Air Force. He asks the Court to set aside the AFBCMR's decision, compel it to change his records in the ways he requested, and award him money damages in back pay and attorneys' fees. Compl. ¶ 102.
A. Enrollment and Health Problems In the summer of 2001, after the end of his second school year, Mr. Charlton was temporarily stationed at Tyndall Air Force Base away from the Academy. Def.'s Mot. for SJ at 1. On July 20, 2001, he complained of joint pain in his hands and feet, fatigue, and intermittent laryngitis. Id. A physical evaluation suggested that Mr. Charlton had an autoimmune deficiency, specifically rheumatoid arthritis. Id. On August 16, 2001, a physician at the Academy's Rheumatology Clinic diagnosed him with small joint polyarthritis. Id. On October 18, 2001 and November 15, 2001, he underwent follow-up examinations with Dr. Kimberly May, who noted that his arthritis persisted. Id. at 1-2. Dr. May referred Mr. Charlton for a Cadet Medical Evaluation Board ("CMEB"). Id. at 2.
A CMEB evaluates whether an active duty member of the Air Force who is diagnosed with a potentially disqualifying illness is qualified for active duty. Pl.'s Mot. for SJ at 2 (citing Air Force Instruction ("AFI") 48-123 ¶ A2.1 (Jan. 1, 2000)). It is triggered when a physician identifies a potentially disqualifying illness in a cadet. Id. A CMEB panel considers the cadet's medical record and a medical summary created by the primary care physician, and makes a recommendation on whether the cadet's condition warrants an early departure or medical waivers. Id. The CMEB panel creates a CMEB report containing its findings, which the Command Surgeon reviews and then indicates his approval or disapproval. Id. The Commandant of Cadets then reviews the compiled CMEB report and makes a final decision concerning whether the cadet should be disenrolled, placed on medical turnback status, or kept in the cadet wing. Id.
Mr. Charlton's CMEB panel convened on December 14, 2001. Def.'s Mot. for SJ at 3. Dr. May's summary to the panel diagnosed Mr. Charlton with symmetric small and large joint polyarthritis, with a differential diagnosis including rheumatoid arthritis. Pl.'s Mot. for SJ at 2. She noted that his fatigue was beginning to have an impact on his ability to keep up with his studies. Id. Dr. May recommended that Mr. Charlton continue at the Academy while being treated for six months with methotrexate. Id. A follow-up examination would determine his response to the treatment and whether changing his commission would be appropriate. Id.
The CMEB panel concurred with Dr. May's findings and determined that, while Mr. Charlton was not qualified for worldwide duty or commissioning, he was able to return to cadet activities. Def.'s Mot. for SJ at 3. The Command Surgeon and Commandant both agreed with the CMEB report, and the Commandant decided to retain Mr. Charlton in the cadet wing and re-evaluate him in May 2002. Id.
On May 6, 2002, Mr. Charlton was re-evaluated. Def.'s Mot. for SJ at 4. Dr. May noted that he had "excellent disease control" and was in "remission," although he had "intermittent minor elevations" during his methotrexate treatment. Id. Dr. May stated that Mr. Charlton would "require a repeat [CMEB] for this issue in the November timeframe." Id. She described his condition as being in "remission," id., and in a follow-up on August 9, 2002, his physician noted an "excellent response" to the medication. Id. Though he had intermittent follow-up evaluations, Mr. Charlton was never given a second CMEB. See Compl. ¶ 29.
B. Honor Violation and WHB Hearing During the fall 2002 semester, Major Terry Wilson, Mr. Charlton's Computer Networks instructor, accused Mr. Charlton of cheating by copying portions of two assignments and lying about receiving assistance in completing another.Def.'s Mot. for SJ at 4-5. Major Wilson and Mr. Charlton could not resolve the matter informally, and so Mr. Charlton signed a "Memorandum of Understanding" that notified him that a WHB proceeding would occur based on Major Wilson's accusation. Id. at 5.
"WHB proceedings are convened at the [Academy] to review evidence and hear testimony from the respondent and witnesses in the case, to discuss the evidence, and to make a judgment as to whether or not the respondent violated the Honor Code." Def.'s Mot. for SJ at 5 (internal quotation omitted). Procedures regarding WHB hearings are codified in the Air Force Cadet Wing Honor Code Reference Handbook ("the Handbook"). See id. WHB hearings are non-adversarial, with neither side receiving representation. Id. The respondent (in this case Mr. Charlton) receives statements that will be used in the WHB hearing before it convenes and is to be given 72-hours notice of any evidence to be used. Id. The WHB has eight voting members who determine whether a violation has occurred. Id. at 6. The respondent can call and cross-examine witnesses, but all questions go through the WHB Chairman. Id. After hearing testimony and being advised of the standard of proof to apply (beyond a reasonable doubt), members deliberate and vote. Id.
Prior to his hearing, Mr. Charlton attempted to have the three separate allegations against him - that is, the two cheating charges and the one lying charge - considered at three different hearings. AR at 23. The WHB denied that request. Id. Mr. Charlton's WHB hearing began on March 5, 2003, id. at 6, and lasted for over 16 hours. Id. at 27. Major Wilson testified by telephone, a procedure to which Mr. Charlton did not object. See id. at 52-83. The WHB also called an expert witness on computer matters, Caroline Dull. Id. at 299-300. It e-mailed to Mr. Charlton Ms. Dull's background and what she generally planned to say approximately 48 hours before the hearing began. Id. After the hearing, the WHB found that Mr. Charlton had violated the Cadet Honor Code with respect to the cheating charges, but not the lying charge. AR at 6.
Pursuant to WHB procedures, Mr. Charlton's case was forwarded to the Commandant for review. Def.'s Mot. for SJ at 7-8. The Commandant decides whether a cadet should be disenrolled or put on honor probation. Id. If the Commandant recommends disenrollment, the cadet then has the opportunity to appeal that decision to the Superintendent, who can concur with or alter the Commandant's sanction. Id. at 8. If the Superintendent determines that disenrollment is proper, he may consult with the Academy Board and then decide whether the cadet should repay his education through enlisted duty or through reimbursement.
Id. The Academy Board consists of Academy leaders and is chaired by the Superintendent. Id. The Superintendent is vested by the Secretary of the Air Force with the authority to make the ultimate decision whether to disenroll the cadet. Id.
There was no Superintendent at the Academy while Mr. Charlton's case was being processed, so this procedure was not followed precisely. Def.'s Mot. for SJ at 8. On July 8, 2003, the Commandant decided to disenroll Mr. Charlton and have him transferred to enlisted active duty for three years. Id. The Commandant then forwarded his decision directly to the Secretary of the Air Force. Id. On January 5, 2004, the Secretary agreed with the Commandant's decision that Mr. Charlton be disenrolled, but decided that instead of repaying the cost of his education through service he should reimburse the Academy. Id. The reimbursement amount was determined to be approximately $136,478. Compl. ¶69. On January 12, 2004, the Air Force discharged Mr. Charlton. Id. ¶ 72.
C. Mr. Charlton's AFBCMR Application On August 10, 2004, Mr. Charlton filed an application with the AFBCMR. AR at 17. The AFBCMR is responsible for the correction of military records upon a finding of error or injustice.10 U.S.C. § 1552(a); see 32 C.F.R. § 865.4(a) (referring to "material error or injustice"). Mr. Charlton sought the following corrections: (1) that he be found not to have violated the Honor Code; (2) that he be given an academic diploma; (3) that he not be obligated to pay the cost of his education; and (4) that he be given an Air Force commission. AR at 19. In his application, he accused the Air Force and WHB of five errors: (1) not properly considering his rheumatoid arthritis as a basis for medical discharge; (2) failing to provide him with due process at his hearing; (3) failing to provide a mistake of fact instruction to WHB members; (4) failing to prove beyond a reasonable doubt that he violated the Honor Code; and (5) treating him inequitably at the WHB proceeding and thereafter. Id. at 2-6.
In assessing Mr. Charlton's application, the AFBCMR received two advisory opinions: one from an AFBCMR medical consultant discussing Mr. Charlton's medical discharge allegation, AR at 494-97, and one from the Air Force Legal Office addressing his arguments more broadly. Id. at 476-81. Mr. Charlton responded to both advisory opinions. Id. at 484-93, 500-10. On October 17, 2005, the AFBCMR denied Mr. Charlton's application and stated: "[W]e agree with the opinions and recommendations of the Air Force offices of primary ...