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Barrett v. McHugh

United States District Court, D. Columbia.

October 31, 2014

CHRISTOPHER D. BARRETT, Plaintiff,
v.
JOHN M. MCHUGH, Secretary of the Army, Defendant

Page 177

For CHRISTOPHER D. BARRETT, Plaintiff: Gary R. Myers, LEAD ATTORNEY, GARY MYERS & ASSOCIATES, Weare, NH.

For JOHN M. MCHUGH, in his official capacity as Secretary of the Army, Defendant: Wayne Holden Williams, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.

Page 178

MEMORANDUM OPINION

JOHN D. BATES, United States District Judge.

Plaintiff Christopher D. Barrett is a former active duty United States Army enlisted service member. After returning from combat in 2004, Barrett went absent without leave (" AWOL" ) for nearly a year. He was subsequently charged with desertion. In response, Barrett requested a discharge from the Army " in lieu of trial by court-martial." The general court-martial convening authority granted his request. Barrett later unsuccessfully petitioned the Army Board for the Correction of Military Records (" ABCMR" ) to change the underlying basis for his discharge from " in lieu of trial by court-martial" to " secretarial authority." He brings this case against the Secretary of the Army challenging the ABCMR's denial of his petition. The Secretary [14] has moved to dismiss for lack of jurisdiction and for summary judgment, and Barrett [16] has cross-moved for summary judgment. Upon careful consideration of the parties'

Page 179

memoranda,[1] the applicable law, and the record, and for the reasons set forth below, the Court will grant the Secretary's motion and will deny Barrett's motion.

BACKGROUND

The parties agree on the following facts:[2] In 2002, Barrett enlisted with the Army for a 4-year period. He deployed to Iraq in 2003 and 2004. He then went AWOL on July 15, 2004. On June 1, 2005, he returned to his unit at Fort Bragg, North Carolina. Shortly thereafter, he was charged with a single specification of desertion in violation of Article 85, Uniform Code of Military Justice. On June 26, 2005, Barrett submitted his first voluntary request for a discharge in lieu of court-martial, explaining that he was being treated for post-traumatic stress disorder. Barrett admitted that he was guilty of the specification charged or of a lesser included offense and that either would warrant a punitive discharge. He conditioned his request, however, on the receipt of an " honorable" discharge. The general court-martial convening authority denied his request and later referred Barrett's case to a special court-martial, authorized to administer a bad-conduct discharge.

Barrett submitted his second voluntary request for discharge in lieu of court-martial on July 24, 2005. Again, he admitted that he was guilty of the specification charged or of a lesser included offense and that either would warrant a punitive discharge, but this time, he did not condition his request on the receipt of an " honorable" discharge. The general court-martial convening authority approved Barrett's request and directed that he receive an " other than honorable" discharge. Barrett was so discharged on August 3, 2005.

Barrett later petitioned the Army Discharge Review Board to change his characterization of service from " other than honorable" to " honorable." The Army Discharge Review Board granted Barrett's request, citing the " overall length and quality" of his service, the medical circumstances surrounding his discharge, and his post-service accomplishments. Admin. Record at 325. The Army Discharge Review Board also noted, however, that " the [narrative] reason for discharge [i.e., " in lieu of trial by court-martial" ] was both proper and equitable" and " voted not to change it." Id.

Barrett later petitioned the ABCMR--the highest level of administrative review within the Department of the Army--to change the narrative reason for his discharge from " in lieu of trial by court-martial" to " secretarial authority." In support of his ABCMR petition, Barrett submitted an Army Discharge Review Board opinion, case number 20040000857 (" Case 1" ), which he argued established precedent for his requested relief. Id. at 274, 278, 281. The ABCMR denied Barrett's petition, noting that the Army Discharge Review Board determined the reason for Barrett's discharge--in lieu of trial by court-martial--was " both proper and equitable." Id. at 276. The ABCMR reasoned that, because of his AWOL, Barrett had submitted a request for a discharge in lieu of trial by court-martial, and hence " discharge in lieu of trial by court-martial"

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was the appropriate narrative for his discharge. Id. at 277.

Barrett attempted to appeal the ABCMR's decision, but he submitted his appeal outside the one-year appeal period. He then filed suit in this Court. The case was voluntarily remanded back to the ABCMR to reconsider its earlier decision. Barrett again asserted that Case 1 was precedent for his requested relief. He also submitted another Army Discharge Review Board opinion, case number 20110004285 (" Case 2" ), in support of his position. In Cases 1 and 2, the Army Discharge Review Board had upgraded the petitioners' discharges from " other than honorable" to " honorable" and had changed the narrative reason for separation from " in lieu of trial by court-martial" to " secretarial authority."

On October 24, 2013, the ABCMR denied Barrett relief. The ABCMR considered the two cases that Barrett provided and found that " there are several readily apparent bases upon which to distinguish [Barrett's] case from the 'precedential' cases." Id. at 12. Regarding Case 1, the ABCMR noted that the petitioner there:

[J]oined the Army in June 1992 and trained as an infantryman. . . . He went AWOL from Fort Campbell, KY, in April 1995. On 19 November 1998, he was apprehended in Sullivan, IN. He was returned to military control. . . . A single AWOL charge was preferred on 24 November 1998. The applicant on the same day submitted a chapter 10 request and signed a statement indicating that he understood " the government has not received the necessary documentation and/or records with which to obtain a conviction by a court-martial." The memorandum further provided " I [applicant] have been advised by military counsel that he cannot completely advise me without these records. I realize my defense counsel is limited by the few records that are available as to the advice he can give. Nevertheless, knowing all this to be true, I waive all defenses that may become known had my defense counsel been able to review my records." . . . . The separation authority approved his request and . . . he was discharged from the Army under the provisions of Army Regulation 635-200, chapter 10, by reason of " in lieu of trial by court-martial[" ] and issued a UOTHC [under other than honorable conditions] discharge.

Id. at 9. The ABCMR noted that the Army Discharge Review Board upgraded the petitioner's discharge characterization and narrative reason in Case 1 on the basis of equity, citing his medical condition and post-service conduct.

Regarding Case 2, the ABCMR noted that the petitioner there:

[E]ntered the Army on 16 November 1999 and was trained as an automated logistics specialist, a combat service support function. . . . Charges were preferred against [him] on 5 June 2002 while stationed at Fort Bragg, NC. The offenses occurred over the course of about five weeks and essentially involved indiscipline. He failed to repair and/or report for duty eight times, left the Corps Support Command (COSCOM) area in violation of the order of his commander, would not move rocks, go wash vehicles, return from lunch, or stay in the company area when ordered to do so by an NCO, wrongfully possessed a pair of brass knuckles, and forged the signature of another on a counseling statement. On the same day charges were ...

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