Foreman v. Department of Navy

          MEMORANDUM OPINION

          TIMOTHY J. KELLY, UNITED STATES DISTRICT JUDGE.

         Jason Foreman, a former servicemember in the United States Marine Corps, has appealed the decision of the Board for Correction of Naval Records (BCNR) denying his request to upgrade the status of his other than honorable discharge by suing the Department of the Navy and Richard V. Spencer, in his official capacity as Secretary of the Navy.

         After serving for about three years, the Navy discharged Foreman under other than honorable conditions “due to a pattern of misconduct, ” some of which had also led to Foreman's conviction by special court-martial. Foreman then sought recourse with the BCNR, requesting that it upgrade his discharge status and order that he undergo medical evaluations to determine his eligibility for disability benefits. He claimed, among other things, that the discharge decision improperly relied on the conduct underlying his court-martial and ignored evidence of his physical and mental disabilities. The BCNR, finding no material error or injustice, denied Foreman's requests. That determination, Foreman claims in this suit, was arbitrary and capricious, unsupported by substantial evidence, and otherwise contrary to law, in violation of the Administrative Procedure Act.

         The parties have filed cross-motions for summary judgment on Foreman's claims. For the reasons explained below, the Navy's motion will be granted, and Foreman's motion will be denied.^[1]

         I. Background and Procedural History

         A. Foreman's Service and Special Court-Martial

         Jason Foreman enlisted with the Marine Corps and entered active duty in 2000, serving as a “field wireman.” AR 16, 143. He was assigned to the Marine Corps Air Station Cherry Point, North Carolina, beginning in May 2002. AR 25. In August of that year, he began to experience left knee pain, and he was ultimately diagnosed with iliotibial band syndrome (ITBS). AR 65. He was then placed on a six-month period of limited duty beginning in November. Id. Though “his symptoms did not improve significantly” with treatment, Foreman “was able to complete many of his work related duties and was therefore listed as deployable.” Id.

         In February 2003, Foreman deployed to Kuwait, though he remained on limited duty. AR 26, 65. He claims that, during his deployment, his commanding officer forced him to perform tasks outside his limited duty restrictions. See AR 58; Pl.'s MSJ at 8. While in Kuwait, Foreman was referred for a medical evaluation because of “alleged homicidal threats [he] made toward supervisors in his chain of command.” AR 58. The report from that evaluation indicates Foreman had “fantasiz[ed] about killing” individuals in his chain of command, and that he had “specifically stated he had planned to use a knife to kill [his staff sergeant].” Id. The medical practitioner diagnosed Foreman with an unspecified adjustment disorder, occupational problems, left knee pain, and “deployment/occupational stressors.” AR 59. He recommended that Foreman be sent back to the United States and receive a formal commander-directed psychological evaluation.^[2] AR 60.

         Foreman returned to the United States in May 2003 when his six-month period of limited duty expired, and he then went on leave. See AR 65. Due to his ongoing symptoms from his ITBS, Foreman was referred to a Navy medical board in June to review his fitness for continued service. See id.; see also ECF No. 26-3 (“SECNAVINST 1850.4E”) ¶ 1003.^[3] The evaluation was limited to his physical condition. See AR 65. The report determined that Foreman had not improved significantly during his six months of limited duty, though it acknowledged that his “deployment did not provide an optimal atmosphere for recovery” and surmised that Foreman might “be able to make enough of a recovery to return to full duty” if given additional time. Id. The medical board thus recommended that Foreman return to limited duty for another four months, as opposed to administratively separating him because of his disability at that time. AR 66. Navy guidance provided that, at least two months before the end of that limited-duty period, Foreman would undergo a second evaluation to determine his status. See SECNAVISNT 1850.4E ¶ 1008.^[4]

         On July 22, 2003, however, the Navy convened a special court-martial charging Foreman with two violations of the Uniform Code of Military Justice. AR 17-18. The charges concerned his conduct while deployed in Kuwait, including possessing a weapon contrary to orders and threatening to kill his superior officer. AR 18. A third charge was later added for threats Foreman made to harm his former girlfriend. AR 31, 39. Navy guidelines require the suspension of any disability evaluation process before a PEB when an individual is being processed for misconduct that could result in a punitive discharge, including a court-martial. AR 19. For that reason, although Foreman had not actually been referred to a PEB, the officer overseeing Foreman's case informed the medical board of the ongoing disciplinary proceedings. AR 19.

         After Foreman was charged, Foreman's counsel requested that the Navy investigate whether Foreman suffered from a severe mental disease or defect at the time of his alleged criminal conduct. AR 38-39. A board of medical examiners-based on clinical interviews, Foreman's medical record, and a series of psychological tests-concluded that Foreman had not suffered from such a disease or defect at the time of the alleged conduct. AR 40-43. In addition, though the board did diagnose him with occupational problems and an unspecified personality disorder, it concluded that he was competent to stand trial. AR 42-43.

         On September 11, 2003, Foreman agreed to plead guilty to two of the counts with which he was charged-the two threats of violence-and not guilty to the third, concerning his improper possession of a weapon. AR 21-23. As part of his plea agreement, he stipulated to a set of underlying facts, including that he threatened to kill his staff sergeant and to kill or harass his former girlfriend. AR 25-30. Though he stated that he did not remember specifically making those statements, he nonetheless admitted to them because he remembered harboring those intents and had no reason to believe that the witnesses were lying. AR 27, 29-30. On September 17, Foreman was sentenced to 5 months' confinement, a $3, 500 fine, and a reduction in rank. AR 31, 33. The convening authority decided not to order that Foreman be punitively discharged for misconduct. See Id. Even so, as part of his plea agreement, Foreman acknowledged that he understood he might “be processed for an administrative discharge even if part or all of the sentence, including a punitive discharge, is suspended or disapproved pursuant to [the] Agreement, ” and specifically, that that discharge could be classified as “other than honorable.” AR 21-22.

         B. Administrative Separation

         About a month later, Foreman's commanding officer recommended Foreman for administrative separation “due to [a] pattern of misconduct.” AR 90. The recommendation specifically referred to the conduct that resulted in Foreman's special court-martial-the threats he made toward his commanding officers and former girlfriend-although it incorrectly stated that Foreman had been convicted of all three charges. AR 96. The recommending officer also conducted an interview with Foreman to discuss his separation and reported that “Foreman's attitude and demeanor throughout the interview was cavalier and [borderline] disrespectful” and that he had “no rehabilitative potential.” AR 96. As part of the administrative separation proceeding, several other officers submitted letters recommending separation, citing immaturity, a lack of discipline, and Foreman's inability to perform assigned tasks. See AR 97, 117-22. And another instance of misconduct-where he was “[c]ounseled” for making personal longdistance phone calls using Navy telephones-was included as well. AR 175.

         In his rebuttal statement, Foreman admitted to making “serious mistakes, ” but he argued he had been adequately punished through his special court-martial, and he requested a chance to rehabilitate his standing. AR 124. If the Navy determined to discharge him, he requested, at the very least, a discharge under honorable conditions. Id.

         On December 1, 2003, the Navy formally decided to administratively separate Foreman “by reason of misconduct” in light of Foreman's “pattern of misconduct.” AR 157. Foreman was officially separated from the Marine Corps on December 11, 2003, with an other than honorable characterization of his service. AR 16.

         On the same day the Navy formally determined to administratively separate Foreman for misconduct, he was once again examined for physical disability because he had completed his four-month period of limited duty. See AR 85. The medical officer determined that Foreman suffered from chronic ITBS and had “experienced little improvement in his condition.” AR 85. While Foreman's condition did not, in the officer's view, constitute a “physical disability, ” the officer still recommended administrative separation as a result of his physical condition. Id. Because Foreman ...