United States District Court, District of Columbia
MEMORANDUM OPINION GRANTING IN PART AND DENYING IN
PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; GRANTING IN
PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT; DENYING PLAINTIFF'S MOTION FOR ORAL
RUDOLPH CONTRERAS, United States District Judge
George Melvin Jenkins, was administratively discharged from
the Army in 1988. Mr. Jenkins later unsuccessfully requested
that the Army Board for Correction of Military Records
(ABCMR) upgrade the status of his discharge to honorable.
Now, Mr. Jenkins seeks review of the ABCMR's decision
under the Administrative Procedure Act (APA), 5 U.S.C.
§§ 701-706. Both parties move for summary judgment.
Because the ABCMR's decision was arbitrary in that it
neglected to address evidence presented by Mr. Jenkins, the
Court grants in part and denies in part these motions and
remands this matter to the ABCMR.
Jenkins entered into active duty in the Army in 1979, at age
17. 1st Jenkins Decl. ¶ 3, JA 145. From 1981 to 1982, Mr.
Jenkins was deployed in Korea. ABCMR Record at 2 (Jun. 14,
2016), JA 9. After serving in Korea, Mr. Jenkins was posted
to a base in Fort Irwin, California, for training.
Mr. Jenkins's service at Fort Irwin, an M-3 submachine
gun went missing. General Court-Martial Order No. 3, JA 69.
Investigators linked the missing gun to Orlando Crespo,
“an Army-Air Force Exchange Service employee who sold
retail and snack items.” United States v.
Jenkins, 18 M.J. 583, 584 (A.C.M.R. 1984), JA 72. Mr.
Crespo was a civilian, but had previously served in the
military. Id. When confronted by investigators, Mr.
Crespo produced the M-3 and named Mr. Jenkins as the source.
Id. Mr. Crespo claimed that Mr. Jenkins had traded
him the M-3 in exchange for potato chips, soda, and
cigarettes. Id. Mr. Crespo also claimed that he had
mistakenly believed the M-3 was a “grease gun”
for lubricating vehicles, rather than a firearm. Id.
Jenkins was charged with two separate offenses-(1) stealing
the M-3 and (2) disposing of it in violation of Articles 108
and 121 of the Uniform Code of Military Justice,
respectively. General Court-Martial Order No. 3, JA 69. Mr.
Jenkins maintained his innocence and was tried by a general
court-martial at Fort Hood, Texas. General Court-Martial
Order No. 3, JA 69. The prosecution for disposition was
“based solely on the testimony of Orlando
Crespo.” United States v. Jenkins, 18 M.J.
583, 584 (A.C.M.R. 1984), JA 72. Apparently
crediting Mr. Crespo's story, the court-martial convicted
Mr. Jenkins on both the charge of larceny and the charge of
unlawful disposition. Id. at 583; General
Court-Martial Order No. 3, JA 69. Mr. Jenkins was sentenced
to “confinement at hard labor for two years” and
a bad conduct discharge. General Court-Martial Order No. 3,
a request by Mr. Jenkins's trial counsel, Mr.
Crespo's disciplinary records from his time in the
service were not provided to Mr. Jenkins before the trial.
Jenkins, 18 M.J. at 584, JA 72. The records,
received after Mr. Jenkins was convicted, showed that Mr.
Crespo had been convicted of disrespect to an officer and
several other offenses-including forging his commander's
signature (although several of the convictions were later
disapproved). Id. The United States Army Court of
Military Review (ACMR) considered Mr. Jenkins's
conviction in light of Mr. Crespo's disciplinary
history and ultimately set aside both of Mr.
Jenkins's convictions with the instruction that “[a]
rehearing on the larceny and wrongful disposition charges may
be ordered.” United States v. Jenkins, CM
443761 (A.C.M.R. July 31, 1987), JA 76. While his convictions
were under review, Mr. Jenkins served some of his sentence of
confinement at hard labor and was eventually released and placed
on excess leave at his home in Indiana. ABCMR Record at 2-3
(Jun. 14, 2016), JA 9-10.
Jenkins's convictions were set aside on July 31, 1987.
United States v. Jenkins, CM 443761 (A.C.M.R. July
31, 1987), JA 76. Shortly after, Mr. Jenkins filed a petition
for review with the United States Court of Military Appeals,
which was docketed on August 31, 1987. Petition for Grant of
Review, JA 194; Docketing Notice, United States v.
Jenkins, No. 443761 (C.M.A. 1987), JA 193. Mr. Jenkins
moved to withdraw the petition shortly after filing it, and
the petition was withdrawn on October 9, 1987. Order,
United States v. Jenkins, No. 443761 (C.M.A. Oct. 9,
November of 1987 an Army lawyer-Captain Hyder-sent a letter
to Mr. Jenkins at Mr. Jenkins's home in Indiana. Letter
from Gary D. Hyder (Nov. 30, 1987), JA 148; 1st Jenkins Decl.
¶ 6, JA 146. The cover letter read, in whole, as
I am Captain Gary D. Hyder, Senior Defense Counsel at Fort
Leavenworth, Kansas. Your court-martial has been sent here
for a re-hearing. It is possible that your case may be
settled by a Chapter 10 and a dismissal of your charges, you
will also receive much of your back pay as a result of your
case being overturned.
I have enclosed a copy of the Chapter 10. I urge you to sign
the Chapter 10. You will receive, along with the benefits
outlined above, no federal conviction. Further, you
will not have to come to Fort Leavenworth in order for this
to be processed.
If you should elect to go for the re-hearing you will receive
none of the benefits I have outlined above, except that you
will receive some of your back pay. You will be required to
come to Fort Leavenworth for your case to be re-tried.
If you elect to submit the Chapter 10, then please sign above
your signature on page 3 of the document. Should you have any
questions regarding your case, or the Chapter 10, please call
me collect at (913) 648-4559/684-4941.
from Gary D. Hyder (Nov. 30, 1987), JA 148. Enclosed with the
cover letter was a three-page form used to request a chapter
10 administrative discharge from the Army. A chapter 10
discharge, or discharge “for the good of the service,
” may be taken by servicemembers facing a
court-martial. See generally, Army Regulation
635-200, ECF No. 36-1, Ex. B. The chapter 10 discharge form
included a variety of acknowledgements to be signed both by
the servicemember requesting discharge and their counsel.
Complete Chapter 10 Form, ECF No. 29-7, Ex. B.
to Mr. Jenkins, the cover letter and chapter 10 discharge
form constitute the entire universe of advice provided by Mr.
Hyder. Mr. Jenkins said that he never met with Mr. Hyder and
does not recall talking with him by phone. 1st Jenkins Decl.
¶ 7, JA 146. Mr. Jenkins states that:
Except for what he said in that letter, Captain Hyder never
talked to me about what might happen if I did not apply for
an administrative discharge. He never discussed the court
decisions with me or explained what legal errors the courts
had found in my case. He never suggested that the Clemency
Board decision or my having already served time at hard labor
might make a difference. Captain Hyder never told me that
there might not be another trial. He did not tell me that if
a rehearing was not ordered within a couple of weeks of his
letter, all charges would have to be dismissed. He did not
tell me that the witnesses who testified at trial might not
be available again, and he never told me that the
prosecution's key witness had sent a letter to the judge
saying that he had lied at my trial to protect himself.
1st Jenkins Decl. ¶¶ 8-9, JA 146. The Army does not
identify any further letters, conversations, or other forms
of communication between Captain Hyder and Mr. Jenkins.
Jenkins signed the third page of the form and returned it to
Captain Hyder. On February 18, 1988, Mr. Jenkins was
discharged from the Army under chapter 10 under “other
than honorable conditions.” Mem. from Gerald T.
Bartlett, JA 184; Certificate of Release or Discharge from
Active Duty, JA 170. After Mr. Jenkins was discharged, the
charges against him were dismissed (instead of proceeding to
another court-martial) because “a rehearing is no
longer practicable.” General Court-Martial Order No. 3,
briefing his summary judgment motion, Mr. Jenkins offers a
new argument concerning the chapter 10 discharge form. Both
parties agree that Mr. Jenkins signed the third page of the
form and returned it. Mr. Jenkins now asserts that the form
he signed was different than the form included in the record.
The form that he claims to have signed included several
check-off options for indicating that the applicant had
received legal advice from counsel. Incomplete Chapter 10
Form, ECF No. 29-6, Ex. A. According to Mr. Jenkins, he never
selected any of the options. 2d Jenkins Decl. ¶¶
5-6, ECF No. 29-5. The version of the form in the
record does not include the check-off lines and
simply states that the legal advice has been
provided. Complete Chapter 10 Form, ECF No. 29-7,
Ex. B. Mr. Jenkins therefore argues that someone else
substituted the pages to yield the completed form, which he
claims he did not see or sign. 2d Jenkins Decl. ¶¶
9-10. Mr. Jenkins acknowledges that this argument and the
incomplete version of the form have never been placed before
the ABCMR. See Pl.'s Mem. P. & A. Supp. Mot.
Summ. J. (Pl.'s MSJ) at 19-31, ECF No. 29-1.
decades after the events described above, Mr. Jenkins made
his first attempt to upgrade his discharge by filing a
pro se application to the ABCMR. The application was
summarily rejected in 2010. Letter from Conrad V. Meyer (Dec.
9, 2010), JA 58; see also ABCMR Record (Dec. 7,
2010), JA 59-62. Mr. Jenkins's subsequent request for
reconsideration was also rejected. Letter from Conrad V.
Meyer (Dec. 6, 2011), JA 64; see also ABCMR Record
(Dec. 1, 2011), JA 65-67.
2014, Mr. Jenkins applied to the ABCMR again, this time with
the assistance of counsel. Appl. Corr. Military Record, JA
37; see also Mem. Supp. Appl. Upgrade Discharge, JA
40-57. The ABCMR again denied relief. Letter from Gerard
Schwartz (Mar. 27, 2015), JA 23; see also ABCMR
Record (Mar. 26, 2015), JA 25-35. Mr. Jenkins filed a
complaint in this Court challenging that determination.
See generally Compl., ECF No. 1. This Court granted
the Army's consent motion for a voluntary remand to the
ABCMR. See generally Order (Feb. 19, 2016), ECF No.
21. On remand, the ABCMR was instructed to consider:
(1) whether Plaintiff received the legal advice specifically
required by Army Regulation 635-200, Chapter 10;
(2) whether Plaintiff's administrative discharge was
issued “in lieu of court martial” or whether at
the time the administrative discharge was issued, a rehearing
before a court-martial would have been legally barred, and,
specifically, whether charges had been referred to a convened
court-martial at the time of discharge and if not, whether an
administrative discharge in lieu of court-martial
was legally permissible[.]
(Feb. 19, 2016). The ABCMR again rejected Mr. Jenkins's
request. ABCMR Record (Jun. 14, 2016), JA 6-22. Following the
most recent rejection, Mr. Jenkins moved for summary
judgment, Pl.'s Mot. Summ. J., ECF No. 29,  and the Army
filed a cross-motion for summary judgment, Opp'n
Pl.'s Mot. Summ. J. & Cross Mot. Summ. J. (Def.'s
MSJ), ECF No. 32.
STANDARD OF REVIEW
Court reviews the ABCMR's decision as a final agency
action under the Administrative Procedure Act (APA), 5 U.S.C.
§ 706. See Delta Air Lines, Inc. v. Exp.-Imp. Bank
of the U.S., 85 F.Supp.3d 387, 400 (D.D.C. 2015)
(“The APA ‘sets forth the full extent of judicial
authority to review executive agency action for procedural
correctness.'” (quoting FCC v. Fox Television
Stations, Inc., 556 U.S. 502, 513 (2009))). When
performing such a review, “the function of the district
court is to determine whether or not as a matter of law the
evidence in the administrative record permitted the agency to
make the decision it did.” Albino v. United
States, 78 F.Supp.3d 148, 163 (D.D.C. 2015) (quoting
Occidental Eng'g Co. v. INS, 753 F.2d 766, 769
(9th Cir. 1985)). “Summary judgment thus serves as the
mechanism for deciding, as a matter of law, whether the
agency action is supported by the administrative record and
otherwise consistent with the APA standard of review.”
Id. (citing Richards v. INS, 554 F.2d 1173,
1177 & n.28 (D.C. Cir. 1977)).
permits a district court to set aside an agency action only
if it was “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5
U.S.C. § 706(2)(A). This arbitrary and capricious
standard is “highly deferential” and
“presumes the agency's action to be valid.”
Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 283
(D.C. Cir. 1981). The scope of this review “is narrow
and a court is not to substitute its judgment for that of the
agency.” Motor Vehicle Mfrs. Ass'n of U.S. v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 30 (1983).
“[A] reviewing court may not set aside an agency
[decision] that is rational, based on consideration of the
relevant factors and within the scope of the authority
delegated to the agency by the statute, ” so long as
the agency has “examine[d] the relevant data and
articulate[d] a satisfactory explanation for its action
including a ‘rational connection between the facts
found and the choice made.'” Id. at 42-43
(quoting Burlington Truck Lines, Inc. v. United
States, 371 U.S. 156, 168 (1962)). A court upholds an
agency's decision when it can “reasonably . . .
discern[ ]” the agency's path, Pub. Citizen,
Inc. v. FAA, 988 F.2d 186, 197, even when the agency
provides only a “brief statement” explaining
“why it chose to do what it did, ” Tourus
Records, Inc. v. DEA, 259 F.3d 731, 737 (D.C. Cir. 2001)
(internal quotation marks omitted); cf. Bowman Transp.,
Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281,
285-86, (1974) (holding that the district court “is not
empowered to substitute its judgment for that of the
agency” and “may not supply a reasoned basis for
the agency's action that the agency itself has not
given”). “Furthermore, a party seeking review of
a board decision bears the burden of overcoming ‘the
strong, but rebuttable, presumption that administrators of
the military, like other public officers, discharge their
duties correctly, lawfully and in good faith.'”
Roberts v. Harvey, 441 F.Supp.2d 111, 118 (D.D.C.
2006) (quoting Frizelle v. Slater, 111 F.3d 172, 177
(D.C. Cir. 1997)). In addition to this presumption that
government officials discharge their duties, it is also
presumed that governmental records are accurate. See
Latif v. Obama, 666 F.3d 746, 750 (D.C. Cir. 2011)
(reissued Apr. 27, 2012) (“The presumption of
regularity-to the extent it is not rebutted- requires a court
to treat the Government's record as accurate; it does not
compel a determination that the record establishes what it is
offered to prove.”).
court review of agency decisions is thus typically narrow and
deferential. The ABCMR, as a military board, is further
entitled to “an unusually deferential application of
the ‘arbitrary and capricious' standard.”
Kreis v. Air Force, 866 F.2d 1508, 1514 (D.C. Cir.
1989); see also Piersall v. Winter, 435 F.3d 319,
324 (D.C. Cir. 2006); Calloway v. Brownlee, 366
F.Supp.2d 43, 53 (D.D.C. 2005). This deference originated
because the Secretary of a military department is authorized
to correct military records “when [the Secretary]
considers it necessary to correct an error or remove an
injustice.” Kreis, 866 F.2d at 1513 (quoting
10 U.S.C. § 1552(a)(1)). A court will disturb only the
military board's “most egregious” decisions.
Id. at 1514; see also Hill v. Geren, 597
F.Supp.2d 23, 29 (D.D.C. 2009) (holding that a court should
only check if the military board “permissibly exercised
[its] discretion and made a choice that is supported by at
least substantial evidence” rather than whether it was
“substantively correct”); Frizelle, 111
F.3d at 176 (holding that a military review board decision
should be upheld if it “minimally contain[s] a rational
connection between the facts found and the choice made”
(internal quotation marks and citations omitted)).
the ABCMR is not entitled to unlimited deference. Its actions
“must be supported by reasoned decisionmaking, ”
Haselwander v. McHugh, 774 F.3d 990, 996 (D.C. Cir.
2014) (internal quotation marks omitted), and must respond to
the plaintiff's non-frivolous arguments,
Frizelle, 111 F.3d at 177. At the ABCMR, plaintiffs
seeking a correction of military records bear the burden of
proof. See Army Reg. 15-185 ¶ 2-9, 32 C.F.R.
§ 581.3(e)(2) (“The ABCMR begins its consideration
of each case with the presumption of administrative
regularity. The applicant has the burden of proving an error
or injustice by a preponderance of the evidence.”).
With this deferential standard in mind, the Court turns to
the ABCMR decision at issue here.
Jenkins argues that the ABCMR erred in determining (1) that
he received the legal advice required by the chapter 10
regulations, (2) that his discharge was “in lieu of
court-martial, ” and (3) that he was not entitled to
equitable relief. The Court addresses each of these arguments
Jenkins argues that the ABCMR erred in finding that his
discharge met chapter 10's procedural requirements for
advice of counsel. The Court first addresses these arguments
on the record that was available to the ABCMR, and then
addresses the new argument based on the additional,
incomplete version of the discharge form that Mr. Jenkins
advances. The Court concludes that the ABCMR acted
arbitrarily in neglecting to consider Mr. Jenkins's
declaration as evidence that he did not receive legal advice,
but declines to compel the ABCMR to accept Mr. Jenkins's
new evidence on remand.
the Record Before the ABCMR
order to “insure that a member will not be coerced into
submitting a request for a discharge for the good of the
Service” the Army enacted specific regulations setting
a floor on the legal advice that members must receive prior
to requesting a chapter 10 discharge. See generally