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Lefrancois v. Mabus

United States District Court, District of Columbia

November 30, 2012

Joseph P. LEFRANCOIS, Plaintiff,
v.
Raymond Edwin MABUS, Jr., Secretary of the Navy, Defendant.

Page 13

Raymond J. Rigat, The Rigat Law Firm, Clinton, CT, for Plaintiff.

Charlotte A. Abel, Wynne Patrick Kelly, U.S. Attorney's Office, Washington, DC, for Defendant.

OPINION

ROSEMARY M. COLLYER, District Judge.

Joseph P. Lefrancois seeks a recharacterization of his discharge from the United States Marine Corps. Mr. Lefrancois enlisted in the Marine Corps Reserve in June of 1995, After two periods of Unauthorized

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Absence, the Marine Corps discharged him with an " Other than Honorable" discharge. He later petitioned the Naval Discharge Review Board (NDRB) and the Board for Correction of Naval Records (BCNR) for review of his discharge; both boards denied his claim for relief. Mr. Lefrancois alleges that the decisions by the NDRB and the BCNR were arbitrary and capricious in violation of section 706 of the Administrative Procedure Act because the boards failed to consider properly whether he was fit for service at the time of his enlistment. Raymond Edwin Mabus, Jr., the Secretary of the Navy, responds that Mr. Lefrancois was properly enlisted because he received a medical waiver for his enlistment and that neither board's decision was arbitrary or capricious. The Court concludes that in the total and complete absence of any evidence in the record that a medical waiver was granted, the boards acted arbitrarily and capriciously in their denial of Mr. Lefrancois's request for relief by failing to consider adequately whether his enlistment was defective.

I. FACTS

A. Background

On June 27, 1995, Mr. Lefrancois enlisted in the United States Marine Corps Reserve and began a period of active duty on July 5, 1995. AR 3. Prior to enlistment, Mr. Lefrancois filled out a Report of Medical History (Form 93). See AR 59-60. He stated that he was in good health and not then taking any medication. AR 59. He also stated that he had never been a patient in any type of hospital and that he had not consulted with or been treated by a doctor within the past five years for other than a minor illness. AR 60. On the same form, however, Mr. Lefrancois stated that he had been treated for a mental condition and further disclosed that he was a patient at Yale-New Haven Hospital from June to August of 1990. He also disclosed weekly sessions with a psychiatrist from September 1990 until August 1992. Id.

Mr. Lefrancois served his first few months on duty without incident. On October 22, 1995, however, he failed to return to duty following a period of liberty. During Mr. Lefrancois's period of Unauthorized Absence (UA),[1] he checked himself into Yale-New Haven Hospital [redacted]. He remained on UA for 36 days; this period of UA ended on November 16, 1995. In early December, Mr. Lefrancois underwent a psychiatric evaluation at Walter Reed National Military Medical Center (Walter Reed). His treating physician at Walter Reed diagnosed him with [redacted] [2] recommended that he be administratively separated. AR 4.

But shortly before the start of procedures for administrative separation, Mr. Lefrancois began a second period of UA on January 1, 1996. He remained on this period of UA for 114 days. Upon advice of a lawyer, Mr. Lefrancois turned himself in to the military on April 24, 1996. Several days after his surrender, he received emergency [redacted] treatment for [redacted] After consultation with a military lawyer, Mr. Lefrancois requested an " Other than Honorable" discharge to avoid facing court-martial proceedings for his two

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periods of UA.[3] His request was approved, and on June 11, 1996, Mr. Lefrancois was discharged from the Marine Corps with an " Other than Honorable" discharge.

B. Naval Discharge Review Board Decision

Mr. Lefrancois petitioned the NDRB for review of his discharge on November 29, 1999. AR 12. The NDRB is made up of five military officers, and its role is " to review the discharge or dismissal (other than a discharge or dismissal by sentence of a general court-martial) of any former member of an armed force." 10 U.S.C. § 1553(a), (b); see also Vietnam Veterans of Am. v. Sec'y of the Navy, 843 F.2d 528, 531 (D.C.Cir.1988) (describing the NDRB). The NDRB " may, subject to review by the Secretary concerned, change a discharge or dismissal, or issue a new discharge, to reflect its findings." 10 U.S.C. § 1553(b). Additionally, the Secretary of the Navy has issued discharge review standards for the NDRB to follow when reviewing a discharge. See SECNAVINST 5420.174D, Part V (current version). " The objective of a discharge review is to examine the propriety and equity of the applicant's discharge." Id. § 501a. In determining whether a discharge is equitable, the NDRB may consider " whether the individual met normal military standards of acceptability for military service and similar indicators of an individual's ability to serve satisfactorily, as well as ability to adjust to military service." Id. § 503c(2).

Mr. Lefrancois requested that his discharge be changed to " general/under honorable conditions or entry level separation or uncharacterized." AR 12. He asserted that at the time of his discharge, " he was suffering from a psychiatric illness which prevented him from understanding the wrongfulness of his conduct." AR 13. The NDRB conducted a ...


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