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Eugene Kight v. United States of America

March 23, 2012

EUGENE KIGHT, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Barbara J. Rothstein United States District Judge

ORDER AND MEMORANDUM OPINION ON MOTIONS FOR SUMMARY JUDGMENT

Plaintiff Eugene Kight, a former United States Army E-1/Private, brings this action against the United States, asserting that the Army Board for Correction of Military Records (hereinafter "ABCMR" or "the Board") acted arbitrarily and capriciously when it did not upgrade Kight's discharge from "other than honorable" (hereinafter "OTH") to either an honorable discharge or a general discharge with a re-entry code that would allow him to re-enter the military. Amended Complaint [dkt. #14] (hereinafter "Amd. Cmplt.") ¶¶ 2-5. *fn1 The United States filed a Motion for Summary Judgment [dkt. #16] (hereinafter "Def.'s Mot."). Kight cross-moved for summary judgment [dkt. #24] (hereinafter "Pltf.'s Mot."). Upon consideration of the motions and the record of the case, the court concludes that the United States' Motion for Summary Judgment should be granted, and Kight's Cross-Motion for Summary Judgment should be denied.

I. LEGAL STANDARD

The parties have cross-moved for summary judgment under Federal Rule of Civil Procedure 56, which provides for entry of summary judgment if "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). Federal courts review final decisions of the ABCMR under the Administrative Procedure Act, 5 U.S.C. § 706. Wilson v. McHugh, - F. Supp. 2d -, Case No. 11-CV-303, 2012 U.S. Dist. LEXIS 16354, *10 (D.D.C. Feb. 9, 2012). In reviewing a case under the APA, the role of a court is limited to reviewing the administrative record. Stuttering Found. of Am. v. Springer, 498 F. Supp. 2d 203, 207 (D.D.C. 2007). The role of the agency acting under the APA is to resolve factual issues and arrive at a decision that is supported by the administrative record. Id. "[T]he function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." Id. (quoting Occidental Eng'g Co. v. INS, 753 F.2d 766, 769-70 (9th Cir. 1985)). In such cases, summary judgment serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review. Id.

Under the APA, a reviewing court shall "hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," and "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right." 5 U.S.C. § 706(2)(A), (C). An agency is required to "examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). "The scope of review under the 'arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency." Id.

The Secretary of the Army, who acts through the ABCMR, "may correct any military record of [his] department when [he] considers it necessary to correct an error or remove an injustice." 10 U.S.C. § 1552(a)(1). A court must apply an unusually deferential standard when reviewing an action of the ABCMR. Escobedo v. Hon. Pete Green, 602 F. Supp. 2d 244, 248 (D.D.C. 2009). "While the broad grant of discretion implicated here does not entirely foreclose review of the Secretary's action, the way in which the statute frames the issue for review does substantially restrict the authority of the reviewing court to upset to Secretary's determination." Kreis v. Sec'y of the Air Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989). The substantial deference afforded military board decisions "is calculated to ensure that the courts do not become a forum for appeals by every soldier dissatisfied with his or her ratings," which would have the potential to "destabilize military command and take the judiciary far afield of its areas of competence." Cone v. Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000). A decision by the ABCMR is not arbitrary and capricious if it "minimally contains a rational connection between the facts found and the choice made." Frizelle v. Slater, 111 F.3d 172, 176 (D.C. Cir. 1997).

A correction board's decision is "entitled to a presumption of regularity." Escobedo, 602 F. Supp. 2d at 248 (citations omitted). The proceedings are governed by Army Regulation 15-185, codified at 32 C.F.R. § 581.3, which provides that "[t]he ABCMR begins its consideration of each case with the presumption of administrative regularity," and that "[t]he applicant has the burden of proving an error or injustice by a preponderance of the evidence." 32 C.F.R. § 581.3(e)(2). The district court is not to function as a "super correction board" by reweighing the evidence. Charette v. Walker, 996 F. Supp. 43, 50 (D.D.C. 1998). The standard of review "does not require a reweighing of the evidence, 'but a determination of whether the conclusion being reviewed is supported by substantial evidence.'" Walker v. Shannon, 848 F. Supp. 250, 255 (D.D.C. 1994) (quoting Heisig v. United States, 719 F.2d 1153, 1157 (Fed. Cir. 1983) (emphasis in original)).

II. FACTUAL AND PROCEDURAL BACKGROUND*fn2

Eugene Kight enlisted in the United States Army on March 13, 1995. Administrative Record (hereinafter "AR") 153. On July 21, 1995, he injured himself in basic training by falling while running uphill backwards. AR 77-78; Amended Complaint [dkt #14] (hereinafter "Amd. Cmplt.") ¶ 13-14. Kight's injury aggravated a lower back injury that existed prior to service. AR 82-85; Amd. Cmplt. ¶ 14. Over the next two months, Kight was evaluated for the injury by medical personnel, none of whom considered the injury to be unfitting for military service. AR 77-85. One examiner noted his belief that Kight was "using a pre-entry problem to get out of a job which is not what he thought it would be." AR 85.

Over the course of August and September 1995, Kight received behavior counseling from members of his unit on a number of occasions.*fn3 On August 9, 1995, Kight was counseled because he told his unit leadership that he would like to get out of the Army because he had failed to adapt. He also stated that he might take a course of action on his own to provoke the commander into discharging him from the Army. Kight was reminded that, were he to break a rule or regulation, it could result in action being taken against him under the Uniform Code of Military Justice ("UCMJ"). He was encouraged to fulfill his obligation to the Army. On August 29, 1995, Kight was counseled because he left his guard post without being properly relieved. On August 31, 1995, he was counseled on his duty performance, because he showed little to no motivation and failed to make an effort to pull his weight in the squad. On September 16, 1995,

Kight refused to carry his rucksack from a platoon patrol base to a new location, complaining of back pain. An officer ordered Kight to put on his rucksack despite his complaints, citing Kight's "history of malingering" in his statement on the incident. On September 29, 1995, Kight was counseled for failing to be at the proper place of duty at the proper time after he missed formation. AR 86-92.

On October 16, 1995, Kight attempted to harm himself by taking two bottles of different pills. Kight told the soldier who found him that he took the pills because of his severe back pain. As they spoke, Kight also said that he had problems in his unit, and that he had tried to get their attention for help. He stated that he did not want to be in the service, and he wanted to get out. AR 93.

On February 14, 1996, Kight was charged under the UCMJ for three unexcused absences, for willfully disobeying a lawful command from a superior commissioned officer, for malingering (specifically, feigning physical disability or intentionally injuring himself to avoid a training exercise when he consumed two bottles of pills), and for wrongfully straggling during a training exercise. AR 94-95; Amd. Cmplt. ¶¶ 22-25. Kight's attorney, the Senior Defense Counsel for Fort Drum, advised Kight of the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ. Kight was also advised of the alternative of accepting an OTH discharge, of the possible effects of a discharge characterization of OTH, and of the procedures and rights available to him. AR 98.

On March 4, 1996, Kight requested a discharge in lieu of trial by court-martial. Kight stated that his request was voluntary and not subject to coercion; that he understood the elements of the offenses charged and was guilty of at least one of the charges; that he has been afforded the opportunity to consult with appointed counsel, who had advised him of the nature of his rights under the UCMJ; that, were he to be discharged with an OTH discharge, it could result in substantial prejudice in civilian life; and that there was no automatic upgrading or review for an OTH discharge. AR 96-98. In his January 2009 application to the Board, Kight explained that his counsel told him that he was likely to win his court-martial, and while a voluntary discharge could have him out of the Army within 72 hours, it could be under OTH conditions. Kight also stated that his attorney ...


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