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Jenkins v. Speer

United States District Court, District of Columbia

June 29, 2017

ROBERT M. SPEER, [1] Acting Secretary, United States Department of the Army,, Defendants. Re Document Nos. 29, 33, 38


          RUDOLPH CONTRERAS, United States District Judge


         Plaintiff, 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.


         A. Factual Background

         Mr. Jenkins entered into active duty in the Army in 1979, at age 17. 1st Jenkins Decl. ¶ 3, JA[2] 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.

         During 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.

         Mr. 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, JA 69.

         Despite 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[3] and ultimately set aside both of Mr. Jenkins's convictions[4] 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[5] 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.

         Mr. 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, 1987).

         In 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 follows:

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.

         Letter 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.[6] 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.

         According 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.

         Mr. 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, JA 183.

         In 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[7] does not include the check-off lines and simply states that the legal advice has been provided.[8] 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.[9] 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.

         B. Procedural Background

         Two 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.

         In 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[.]

         Order (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, [10] 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.[11]


         The 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)).

         The APA 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.”).

         District 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)).

         However, 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.

         IV. ANALYSIS

         Mr. 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 in turn.

         A. Legal Advice

         Mr. 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.

         1. On the Record Before the ABCMR

         In 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 Army ...

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