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Ferguson v. McHugh

United States District Court, D. Columbia.

August 14, 2014

TIM FERGUSON, Plaintiff,
v.
JOHN M. MCHUGH, Secretary of the Army, Defendant

Page 34

For Tim Ferguson, Plaintiff: John A. Wickham, LEAD ATTORNEY, JOHN A. WICKHAM, ESQ., Evergreen , CO.

For John M. Mchugh, Secretary of the Army, Defendant: Wayne Holden Williams, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington , DC.

Page 35

MEMORANDUM OPINION

BARBARA J. ROTHSTEIN, UNITED STATES DISTRICT JUDGE.

This case is before the court on Defendant's Motion to Dismiss and Motions for Summary Judgment from both parties. Plaintiff Tim Ferguson seeks review of a decision by the Army Board of Corrections for Military Records (" ABCMR" or " Board" ). The Board denied Ferguson's application to change his record from a discharge in lieu of court-martial to a medical retirement. Having reviewed the briefs and the administrative record, the Court grants Defendant's motion for summary judgment, for the reasons discussed below.

I. Background

A. Voluntary Discharge in Lieu of Court-Martial

Army regulations provide that a service member may request discharge in lieu of court-martial where the service member faces a trial by court-martial in which a punitive discharge can be adjudged. Army Reg. 635-200, ¶ 10-1. This is known as a " Chapter 10" discharge request. The regulation prohibits coercion of such requests. Id. ¶ 10-2.

B. Ferguson's Hospitalization and Discharge

Ferguson enlisted in the U.S. Army on July 24, 1978. AR 128. In early 1991 Ferguson's commander began an investigation of Ferguson in response to sexual harassment complaints by Ferguson's subordinates. AR 615, 727. The investigation uncovered sufficient evidence for Ferguson to be charged, and Ferguson was relieved of duties. AR 599. Between December 1991 and January 1992, Ferguson was charged with misappropriation of government property, sexual harassment, and adultery. AR 26; Defendant's Statement of Undisputed Facts (SUF) ¶ 9.

On January 14, 1992, Ferguson was voluntarily admitted to the hospital for psychiatric evaluation. SUF ¶ 14. The admitting attendant described Ferguson's thought process as " intact," and his mental status as " alert." AR 406. The records indicate that Ferguson remained cooperative and alert throughout the hospitalization, which lasted until January 17, 1992. AR 377-79.

The nurse's notes from January 14, 1992 describe Ferguson as " very angry" on admission to the hospital, and " paranoid." AR 376-77. Ferguson admitted to feeling depressed and vaguely suicidal, though he denied having any current suicidal thoughts. AR 377-78. Ferguson stated: " My lawyer wants me to take a Chapter 10. I don't want to take it for something I didn't do." AR 377. He further stated that he " will not let 14 yrs of service go in vain." AR 378.

Progress notes from Ferguson's clinical psychologist indicate that the hospital staff spoke with Ferguson's attorney on January 15, 1992 and made an appointment for the attorney. AR 395. In a group session, Ferguson " discussed charges he's facing [and] his innocence." AR 395. A January 16, 1992 progress note states that

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Ferguson " feels he is coming to terms [with] where he 'is,' [and] plans to accept his attorney's recommendation." AR 396. Another call was placed to Ferguson's attorney that day. Id. The next day, January 17, 1992, hospital staff made the following progress note:

" Extensive meeting/discussion with [Ferguson's] attorney [and Ferguson] at end of day; Clearly [Ferguson] stable at this point [and] does not need to be in hospital. He understands what he is up against, will take a [Chapter] 10 if he can, [and] will come to my office on Tues[day] for a [follow-up] appointment. [Ferguson] is not suicidal, homicidal or in any other way a danger."

AR 397.

Ferguson was discharged from the hospital on January 17, 1992, having been diagnosed with " Adjustment Disorder with Anxiety and Depression," and " Character Disorder." AR 372. His physician described him as having " much legal difficulties but 'conventionally' intact." AR 398. At a follow-up appointment, Ferguson maintained that his goal was " to have my situation justified and stay in the army." AR 382. According to a clinical record prepared on January 22, 1992, Ferguson " constantly talks about the need to return to his job as soon as possible." Id.

On January 29, 1992, Ferguson was readmitted to the hospital for suicidal ideations. AR 383, 385. Once again, Ferguson " emphatically denie[d]" the sexual harassment charges. AR 383. On January 30, 1992, Ferguson's attending psychologist, Dr. David Ruhland, typed the following note into a progress report:

[Ferguson's] councilor (lawyer), Mr. Cohen, met with me and we discussed [Ferguson] signing documents to have [him] released from the U.S. Army. I advised councilor that at this time it was not advisable because [Ferguson] is not competent enough to sign any forms or documents. In fact, [Ferguson] is very stressed out and very depressed. Councilor assured me that he wouldn't bring up any subject about any charges or documents. Councilor and [Ferguson] met in visitors room along with a volunteer of the H600 ward. After Mr. Cohen left, volunteer informed me that councilor had [Ferguson] sign some documents. I then called [Ferguson's] CO and informed him of this. CO replyed [sic] " I'll look into this first hand." I talked with [Ferguson] after the CO and [Ferguson] had no response to any question I asked.

AR. 401. Ferguson was released on January 30, 1992, with diagnoses of adjustment disorder and character disorder. AR 73, 390.

Ferguson requested a discharge in lieu of court-martial either during his January 29-30, 1992 hospitalization or shortly after. AR 74-75. The undated request letter signed by Ferguson contained an affirmation that he was making the request " of [his] own free will," not subject " to any coercion whatsoever by any person." AR 74. In the letter, Ferguson admitted guilt to the charge of adultery. Id. The discharge was approved on February 4, 1992, and Ferguson received an " other than honorable" discharge on February 11, 1992. AR 525, 535.

C. Ferguson's Pre-2008 Appeals

On April 21, 1998, Ferguson applied to the Army Discharge Review Board (ADRB) seeking an upgrade to " honorable" discharge, on the grounds that he was innocent of the charges and that his state of mind prevented him from knowingly signing the Chapter 10 request for discharge in lieu of court-martial. AR 467-68.

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On September 18, 1998, the ADRB upgraded the discharge to a " general" discharge. AR 218. The ADRB determined that, in light of Ferguson's service record, " the quality of [Ferguson's] service did not warrant" an " other than honorable conditions" discharge. AR 216. However, the ADRB did not alter the reason for the discharge, and concluded that " after consulting with defense counsel, [Ferguson] voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial." Id.

Ferguson also filed an application with the ABCMR to revoke his discharge. AR 231. As grounds for the correction, Ferguson stated that he was " bewildered and confused" at the time of the discharge, and signed whatever documents were put before him. Id. The ABCMR denied the application on May 5, 1999. AR 188-91. Reviewing Ferguson's military record and the relevant documents, the Board concluded that Ferguson's Chapter 10 request " was administratively correct and in conformance with applicable regulations," and that Ferguson had submitted " no evidence to show he was coerced into requesting discharge or that he was not in his right mind when he did so." AR 190.

On September 1, 1999, Ferguson applied for reconsideration of the ABCMR's May 1999 decision. AR 160. In support of his contention that he lacked the mental capacity to sign the Chapter 10 discharge request, Ferguson submitted medical records from his hospitalization. Id. The ABCMR denied Ferguson's application for reconsideration on May 17, 2000. AR 159. The Board acknowledged Dr. Ruhland's January 30, 1992 letter, but determined that " there is insufficient evidence to conclude that [Ferguson] was not mentally competent to sign whatever he signed on 30 January 1992 or that he was incapable of making an informed decision whenever he signed his request for discharge." AR 158. The ABCMR reviewed the circumstances of the visit by Ferguson's lawyer on January 30, 1992, and found it " improbable" that " a mental health professional would have allowed any meeting to occur if the applicant was not actually competent." Id. The Board also deemed it " unlikely that such a professional would have emphasized how bad off such an incompetent patient was by writing 'In fact PT is very stressed out.'" Id. The Board also noted that Ferguson was released following his attorney's visit, despite refusing to answer Dr. Ruhland's questions. Id. Finally, the Board highlighted a progress note from January 17, 1992, illustrating that Ferguson " had, even that early, already made a decision to request discharge for the good of the service to avoid trial by court-martial." Id.

D. Ferguson's 2008 Appeal and Request for Reconsideration

On July 8, 2008, Ferguson again applied to the ABCMR, requesting that his discharge be changed to a medical retirement.[1] AR 127, 141. Along with the application, Ferguson submitted a certificate reflecting the upgrade to " general" discharge, his medical records, a 2006 disability rating from the Department of Veterans Affairs (VA), and a 2006 letter from the VA. AR 129-30. The medical records reflected that, since 1999, Ferguson had been treated for bipolar disorder with psychotic features. AR 129. The ...


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