United States District Court, District of Columbia
JASON M. FOREMAN, Plaintiff,
DEPARTMENT OF THE NAVY et al., Defendants.
TIMOTHY J. KELLY, UNITED STATES DISTRICT JUDGE.
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.
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.
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.
Background and Procedural History
Foreman's Service and Special Court-Martial
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.
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. AR 60.
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. 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 ¶
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.
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.
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.
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.
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.
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.
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 ...