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Rudo v. McHugh

United States District Court, District of Columbia

March 20, 2013

BABATU M. RUDO, Plaintiff,
JOHN McHUGH, Secretary of the Army, Defendant

Page 133

For BABATU M. RUDO, Plaintiff: John A. Wickham, LEAD ATTORNEY, JOHN A. WICKHAM, ESQ., Evergreen, CO.

For JOHN M. MCHUGH, Secretary of the Army, Defendant: John J. Gowel, LEAD ATTORNEY, UNITED STATES ATTORNEY'S OFFICE FOR THE DISTRICT OF COL, Civil Division, Washington, DC.


Gladys Kessler, United States District Judge.

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Babatu Rudo [1] (" Plaintiff" or " Rudo" ), a former service member in the United States Army (" Army" ), brings this action pursuant to the Administrative Procedure' Act (" APA" ), 5 U.S.C. § § 701 et. seq. and the Fifth Amendment's Due Process Clause against John McHugh (" Defendant" ), Secretary of the Army, challenging the Army Board for Correction of Military Records' (" ABCMR" or " Board" ) decision regarding the characterization of his discharge from the Army.

This matter is before the Court on Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment [Dkt. No. 35] and Plaintiff's Cross-Motion for Summary Judgment [Dkt. No. 41]. Upon consideration of the Motions, Oppositions, Replies, the administrative record, and the entire record herein, and for the reasons set forth below, Defendant's Motion is granted and Plaintiff's Motion is denied.


A. Regulatory Framework

Under the Army Regulations in place in 1968, an Army soldier could be discharged upon a finding that he was " unsuitable" for further military service. See Administrative Record (" AR" ) [2] at 66 (Army Regulation

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("A.Reg." ) 635-200, 635-212 ¶ 1). A discharge for unsuitability was proper if the soldier exhibited any one of the following conditions: " (1) Inaptitude, (2) Character and behavioral disorders, (3) Apathy (lack of appropriate interest), defective attitudes and inability to expend effort constructively, (4) Alcoholism, (5) Enuresis (bedwetting), or (6) Homosexuality." AR at 67 (A.Reg. 635-212 ¶ (6)(b)).

Before removing a soldier on " unsuitability" grounds, the Army was required to establish: (1) that the soldier was unlikely to develop " sufficiently to participate in further military training and/or become a satisfactory soldier" and (2) that the soldier met the " retention medical standards" in place at the time. See id. at 66 (A.Reg. 635-212 ¶ 3(b)).

To satisfy these requirements, a soldier's unit commander was required to refer the soldier for physical and mental evaluations and to provide the medical examiners with " [s]ufficiently detailed information about the reasons for considering the individual . . . . unsuitable" so that the medical examiners would have a thorough understanding of the contemplated action. Id. at 68 (A.Reg. 635-212 ¶ 8).

If the medical examiners determined that the soldier was medically unfit for service, the discharge process pursuant to " unsuitability" grounds was halted. Id. at 69 (A.Reg. 635-212 ¶ 9). If, however, the medical examiners determined that the soldier met " retention medical standards," i.e., that he was medically fit for further military service, his discharge for unsuitability would be approved and the soldier would be sent back to his commanding officer for further processing of his discharge. Id. (A.Reg. 635-212 ¶ 9).

Once the soldier was medically cleared for an unsuitability discharge, the commanding officer was required to provide him with the " basis of the contemplated separation and its effect." Id. (A.Reg. 635-212 ¶ 10(a)(1)-(3)). The " effect" of a soldier's separation was governed by the characterization of his service. Pl.'s First Cross-Mot. for Summ. J. App. (" Pl.'s App." ) at 13 [Dkt. No. 13-4] (A.Reg. 635-200 ¶ 1.8).

In 1968, a soldier's service could be characterized as one of five general types of discharges, ranging from the most satisfactory characterization of service to the least satisfactory: " (1) Honorable, (2) General [u]nder honorable conditions, (3) Undesirable [u]nder conditions other than honorable, (4) Bad Conduct [u]nder conditions other than honorable, [or] (5) Dishonorable." Id. at 12 (A.Reg. 635-200 ¶ 1.5).

An unsuitability separation could be characterized as either an " Honorable or General discharge," depending upon the soldier's service record. AR at 66 (A.Reg. 635-212 ¶ 4(b)). Either of those characterizations entitled a soldier to " full Federal rights and benefits," while " an undesirable or bad conduct discharge may or may not deprive the individual of veterans' benefits administered by the Veterans Administration." Pl.'s App. at 13 (A.Reg. 635-200 ¶ 1.8).

The commanding officer overseeing the discharge process was required to explain to the soldier his rights. AR at 69 (A.Reg. 635-212 ¶ 10(a)(1)-(3)). These rights included the right of the soldier to present his case before a board of officers, to submit statements on his own behalf, and to be represented by counsel. Id. Alternatively, the soldier could waive these rights in writing. Id. A soldier who chose to waive his rights was required to submit a signed statement indicating that he had " been advised of the basis for his contemplated separation and its effect and the rights available to him." Pl.'s App. at 9 (A.Reg. 635-212). This statement read:

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I understand that I may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions is issued to me. I further understand that as the result of issuance of an undesirable discharge under conditions other than honorable, I may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that I may expect to encounter substantial prejudice in civilian life.


After the soldier had been adequately informed of his rights under the applicable regulations, and either exercised or waived those rights in a signed statement, he was issued a final discharge certificate stating " the specific reason and authority for [his] discharge," effectively ending his service in the Army. Id. at 10 (A.Reg. 635-212 ¶ 23).

B. Factual Background[3]

Plaintiff served in the Army from September 1966 until November 1968. Complaint (" Compl." ) [4] ¶ ¶ 1, 21 [Dkt. No. 1]. During his tenure with the Army, Plaintiff received several nonjudicial punishments under Article 15 of the Uniform Code of Military Justice [5] for infractions such as visiting " off-limits" bars while in Vietnam, smoking marijuana, and going " absent without leave" or " AWOL." Id. ¶ ¶ 7, 9-11.

In October 1968, as a result of Plaintiff's multiple Article 15 reprimands, his commander reduced his rank and recommended that he receive an administrative discharge for " unsuitability" due to apathy pursuant to Army ...

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