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Ey v. McHugh

United States District Court, District of Columbia

February 28, 2014

CARL S. EY, Plaintiff,
v.
JOHN M. MCHUGH, Secretary of the Army, Defendant

Page 50

For CARL S. EY, Plaintiff: Gary R. Myers, GARY MYERS & ASSOCIATES, Weare, NH.

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.

OPINION

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MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge.

In October 2009, an Army psychiatrist diagnosed Plaintiff Carl Ey, a Lieutenant Colonel then on active duty, with anxiety and depression. Just a month later, Ey received notice that he would be transferred to a new duty station some 1500 miles from his home in Washington, D.C. In response, he asked to retire from active duty, effective six months later. This would allow him to avoid reassignment and to continue his medical treatment until retirement. But Ey soon had second thoughts -- since retiring on that timetable would mean forfeiting the chance at a promotion and certain benefits -- and he subsequently asked the Army to allow him to stay on active duty until August 2011. The Army obliged, although it refused to guarantee that he would be considered for the promotion. Dissatisfied, Plaintiff decided to, in his words, " march on" into retirement. That, however, did not end the matter in his mind. Alleging that he had been improperly forced to choose between relocation and retirement, he asked the Army Board for Correction of Military Records to reinstate him. The Board declined. Plaintiff sought reconsideration by the ABCMR, and it again denied his claim, so he brought this suit.

A third round of Board review in the books -- this one after remand from this Court -- Plaintiff now challenges the ABCMR's decision as arbitrary and capricious, an abuse of discretion, and contrary to law. As relief, he asks the Court to reinstate him to active duty and to order the Army to consider him for promotion to Colonel. In light of the weighty deference owed to administrative decisions made by the armed forces, however, the Court cannot

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overturn the ABCMR's ruling. As a result, it will grant Defendant's Motion for Summary Judgment and deny Plaintiff's.

I. Background

No one here denies that Carl Ey had a distinguished career in the Army, rising from Second Lieutenant to Lieutenant Colonel over the course of 19 years. See Administrative Record at 390. Unfortunately, 18 years into that career, in October 2009, Plaintiff's psychiatrist diagnosed him with an " adjustment disorder with anxiety and depressed mood." AR 5, 134. This " temporary profile" specifically opined that Plaintiff should not take the Army Physical Fitness Test, but it said nothing about reassignment or deployment, and Plaintiff was in fact reassigned from Washington, D.C., to Fort Riley, Kansas, on November 17, 2009. See AR 4. After some negotiating, it was agreed that the transfer would take effect on January 14, 2010. See AR 135, 144.

From there, events picked up steam. Around December 10, 2009, Ey asked his assignment manager for information regarding retirement in lieu of accepting a Permanent Change of Station, and he was told that, if he decided to pursue that option, his retirement paperwork would have to be submitted within thirty days of the original notification date of his reassignment -- i.e., by December 17, 2009. See AR 140. Getting in just under the wire, on December 15, Plaintiff submitted a request for retirement in lieu of his reassignment, effective May 31, 2010. See AR 141-43. In his application for retirement, Plaintiff affirmed that he was " familiar" with the regulations regarding retirement and promotion, and that he understood that his retirement request could not be withdrawn. See AR 142.

Three days later, on December 18, Plaintiff notified Army Human Resources Command via e-mail that his health-care provider would be issuing him a second temporary profile recommending that he continue treatment at his present duty station through March 15, 2010, see AR 144, though he apparently never showed the documents to Human Resources Command. See AR 146. On December 30, his psychiatrist seconded that recommendation in a third temporary profile. See id. In light of those updates, Plaintiff asked that the Army allow him to rescind his retirement and delay his transfer until his treatment was complete. See id. Instead, on January 21, 2010, the Army approved his retirement request, effective May 31, 2010. See AR 175.

On March 1, 2010, Plaintiff asked to delay his already-approved retirement, ostensibly so he could complete his medical treatment. See AR 145. The Army declined. See AR 145. After his health-care provider reiterated that he should remain in Washington for an additional 90 days -- this time through the middle of June -- Ey again asked the Army to allow him to amend his retirement request. This time, it obliged and pushed his retirement date back to August 31, 2010. See AR 146.

At this point a bit of background on the Army's promotion policies may be helpful. Army officers are generally considered for promotion according to a strict schedule; promotion boards consider candidates for each rank annually, and this is the predominant, though not exclusive, avenue for promotion. Especially relevant to Plaintiff's case is Army Regulation 600-8-29, ¶ 1-10e, which states that an officer who is fewer than 90 days from retirement when a promotion board convenes is ineligible for promotion. The 2010 Colonel Promotion Board -- the body that would have had the authority to promote Plaintiff from Lieutenant Colonel -- was scheduled to meet in June of 2010. See AR 291. Because

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that meeting fell within 90 days of Plaintiff's scheduled retirement date of August 31, 2010, he was notified via automatic e-mail on May 6 that he would not be considered for promotion. In response -- or, as he tells it, because he had scheduled a foot surgery for June 3, 2010, and his doctor had recommended that he remain on active duty through his recovery, see AR 146 -- Plaintiff petitioned to push his retirement back a year, to August 31, 2011. See AR 146, 284-89. His branch manager communicated to him that he would remain ineligible for consideration by the 2010 promotion board for the time being, but that if his retirement date were officially moved back, he would then become eligible. See AR 291. Of course, if the board met before Plaintiff's retirement date was changed, it would not be able to consider his candidacy. And that, indeed, appears to be what happened.

On July 21, 2010 -- more than six weeks after the promotion board met -- perhaps in response to the Surgeon General's determination that no physical or mental limitations should preclude Plaintiff from continuing his service, see AR 225-28, the Army notified Ey that it would approve his request to delay his retirement for a year, see AR 228, but that he would have to submit a new retirement application for procedural reasons. See AR 325-26. Plaintiff responded that unless he was seen by a Special Selection Board -- a body that, per Army regulations, may consider an officer for promotion when he or she is improperly passed over by a regular selection board -- he would continue with his plans to retire on August 31, 2010. See AR 325.

No response was apparently forthcoming, and Plaintiff, perhaps unsurprisingly, was not satisfied with the way things ended. In his mind, he had been offered a Hobson's choice between transfer (and cessation of his medical treatment in Washington) and retirement by a certain date, and thus he was deprived of the chance to earn his promotion to Colonel, which would have carried with it significant monetary benefits. Since Army Human Resources Command had effectively denied his request to delay his retirement and had not placed him before a Special Selection Board, he went up the chain of (legal) command. Several weeks before the date he was scheduled to retire, Ey filed a claim with the ABCMR requesting that he be reinstated and that a Special Selection Board (SSB) consider him for promotion to Colonel. See AR 266-309. While that body deliberated, Plaintiff's retirement date arrived, and he left active duty at the rank of Lieutenant Colonel. See AR 203-04. The ABCMR ultimately denied his petition, concluding that his decision to retire was voluntary and that Army regulations did not provide for the revocation of retirement in cases like his. Plaintiff requested reconsideration, and the ABCMR again declined to grant relief. See AR 46.

Convinced of the purity of his cause, Plaintiff filed suit in this Court in May 2012. In December of the same year, at Defendant's request, the Court remanded the case to the ABCMR and directed it to consider several issues, including whether Army regulations and Plaintiff's temporary profiles should have limited his ability to be reassigned at the time he was transferred on November 17, 2009. See Order, December 21, 2012 (ECF No. 15). The Board revisited Plaintiff's case and held that the temporary profiles in effect at the time he received his transfer orders had no effect on his eligibility ...


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