### UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLUMBIA MALCOLM G. SCHAEFER, ) ) ) ) 

### v. PETE GEREN, Plaintiff, ) Civil Case No. 07-1550 (RJL) ) ) 

### SECRETARY OFTHE ARMY, ) ) 

### Defendant. ) 

# Vci MEMORANDUM OPINION**(March~** 

### 2009) [#s 10, 42] Malcolm Schaefer ("plaintiff'), a former U.S. Army officer, brings this action against Pete Geren ("defendant"), in his official capacity as Secretary ofthe Army, seeking to reverse the Army Board for Correction ofMilitary Records' ("ABCMR") decision denying his request that certain records in his official military personnel file be altered or expunged. Beforethe Court are plaintiffs and defendant's cross-motions for summaryjudgment. Because the ABCMR's decision was neither arbitrary, capricious,
nor unlawful, plaintiffs motion for summaryjudgmentis DENIED and defendant's motion for summaryjudgment is GRANTED. 

### BACKGROUND In the fall of2000, plaintiffwas an active member ofthe U.S. Army Judge Advocate General's Corps ("JAG Corps") assignedto the Trial Defense Service field office at Fort Benning, Georgia. (Compl.**~~** 

### 11, 13 [Dkt. #1].) He had attended the University ofVirginia School ofLaw at the Army's expense, graduating in 1996, andwas serving a six-year active duty service obligation. (A.R.226.) Dueto thephysical deterioration ofhis knees, plaintiffs physician referred him to an administrative screeningboard. known as a MedicaliMSO Retention Board ("MMRB"), for evaluation ofhis ability toperform the physical requirements ofhis specialty in a worldwide field environment. I (A.R. 228); seegenerallyPhysical PerformanceEvaluation System, Army Reg. 600-60**~** 2-1 (Oct. 31, 1985).2 On September27,2000, uponplaintiffs request, the MMRB ConveningAuthority referred plaintiffs case to a Medical Evaluation Board CoMEB") after finding that his "ability to satisfactorilyperform [his] duties
... is questionable." (A.R. 476, 492.) A MEB is the first step in the Army's Physical Disability Evaluation System ("PDES"), which determines whether a solider is unfit because ofa physical disability to perform his orher duties and, as a result, shouldbe discharged. See generally Physical Evaluation for Retention, Retirement, or Separation, Army Reg. 635-40 (Aug. 15, 1990). On May 29, 2001, the MEB determined that plaintiffdid not meetthe medical qualifications for retention and referred his case to a Physical Evaluation Board ("PEB"), the second step in the PDES process. 3 (A.R. 496-500.) OnJune 11,2001,the PEB at Plaintiffwas unable to run, parachute, walk long distances, march with arucksack, or conduct othermilitary activities that included impact on his knees. (Compi.**~** 14.) 2 Since the filing ofthe Complaint in this case on August 30, 2007, many ofthe regulations governing the relevant Army conduct have been revised. E.g., Physical Performance Evaluation System, Army Reg. 600-60 (Feb. 28, 2008). For purposes ofthis decision, the Court references and applies the versions ofthe regulations that were in force at the time ofthe conduct at issue. 3 MEBs are tasked with determining whether a solider is medically qualified for retention based on certain medical criteria. See Army Reg. 635-40**~** 4-10. PEBs subsequently evaluate the soldier's medical condition against the physical requirements ofthe soldier's particular office, grade, rank, or rating and make findings and recommendations as to the soldier's eligibility to be separated. See id.**~** 4-17.
2Fort Sam in Houston, Texas, determined that plaintiffwas medically unfit and recommend he be separated from the Army with severance pay and a zero percent disability (the "firstPEB"). (A.R. 96.) Afterplaintiffconcurred with the findings, the PEB forwarded plaintiff's case to the U.S. Army Physical DisabilityAgency ("USAPDA") in Washington, DC

- the third step in the PDES process - which reviewed the unopposed recommendation. (A.R. 97,406, 750, 1235, 1705-06.) AtUSAPDA's direction, the Physical Disability Branch ("PDB") then used the TRANSPROC computer notification system to authorize the FortBenningtransition office to issue discharge orders

- the fourth and final step in the process.4 (A.R. 528, 750, 767, 772.) OnJuly 2, 2001, Fort Benning printed Orders 183-2200, which orderedplaintiffto take certain preparatory actions andto appear at the transition point for processing on his appointed discharge date, September 14,2001. (A.R. 98.) Duringthis process, plaintiffhadtaken care to keep his progression quiet from the JAG Corps.s In late July, however, an employee in the JAG Corps Personnel Plans 

### & Training Office ("PPTO") discovered plaintiff'spending discharge while updating the office's database and, due to his surprise, contacted Dennis Brower, the legal advisorto 4 The record indicates that "TRANSPROC is an electronic notification system that is an interoffice network connecting the [USAPDA]
... with installation transition centers/points." CA.R. 750.) 5 Only plaintiffs administrative commander

- the commander ofhis local unit to which he was attached for administrative support
- knew from the outset that plaintiffwas being considered for amedical discharge, and plaintiffasked him to keep it confidential. CA.R. 408, 460.) Following the PEB's recommendation that he was unfit, plaintiffasked the PEB Liaison Officer "keep all ofthis quiet" out ofconcern that ifhisJAG supervisors found out, they would try to cancel the PEB and retain him on active duty. CA.R. 410.) Indeed, plaintiffdid not inform anyone in his supervisory chain in the JAG Corps until afterhe received his discharge orders on July 2, 200I, and, even then, he asked those who he told to tell as few people as possible. CA.R. 413,460.)
3

### USAPDA. (A.R. 449, 1236.) Upon his review, Brower determined that plaintiffs case file was deficient for lack ofperfonnancereviews from plaintiffsJAG Corps supervisors. (A.R. 449, 1238.) Brower asked Colonel Clyde Tate, chiefofPPTO, whetherthe JAG Corps was interested in submittingperformance infonnation about plaintiff, to which Col. Tate answered it was. (A.R.446.) The JAG Corps thereafter submitted several ofplaintiffs officer evaluation reports and, on August 10, 2001, Col. Tate submitted a memorandum to USAPDA stating thathe had reviewed medical facts in plaintiffs file and "concIude[d] with certainty that [plaintiff] can effectively perform his assigned duties as ajudge advocate." (A.R. 517-18, 769.) Based on the JAG Corps' assessment, Colonel Austin Bell, deputy commander of USAPDA, directed Browerto send the new infonnation to the PEB in Texas to see ifthe PEB wanted to reconsider its previous findings, which it said it did. (A.R. 761, 769.) In addition, at Col. Bell's direction, PDB took steps to revoke the authorization to discharge plaintiffand to puthis case "on hold." (A.R. 762, 769-770, 772.) On approximately August 2, 2001, PDB attempted to revoke the authorization in the TRANSPROC system; the system, however, was not workingproperly. (A.R. 444.) PDB accordingly contacted the Fort Benningtransition point both by telephone and by facsimile to let them know that plaintiffwas no longer authorized for separation and that PDB would make the appropriate change in TRANSPROC when it was again operational. (A.R. 442, 444, 947-48, 1563-64.) On approximately August 14,2001, a PDB analyst again attempted to revoke the authorization in the TRANSPROC system, this time supposedly with success. (A.R.444.)

4On August 30, 2001, the PEB issued a new determination that plaintiffwas, in fact, fit for continued active duty (the "second PEB"), whichthe Fort BenningPEB Liaison Officer ("PEBLO") communicatedto plaintiffon September 5th. (A.R. 100-01.) Plaintiffdid not concurwith the finding. (ld.) The PEBLO informedplaintiffthat he had ten days in which to submit a written appeal, which plaintiffand the PEBLO agreed would be due Monday, September 17th. (A.R. 101,406.) In response to plaintiffs comment during the meetingthat he had discharge orders and was in the process of clearing, the PEBLO responded thathis case was "onhold.,,6 (A.R. 406.) Onthe advice ofcounsel, however, plaintiffnevertheless proceededto move forward with his outprocessing and, on September 14th, three days after the terrorist attacks ofSeptember 11, 2001, plaintiffappeared at the transition point and presented his July 2, 2001 discharge orders. (A.R. 326-27, 439.) Despite PDB's multiple attempts to effectuate the revocation ofFortBenning's authority to discharge plaintiff, the code in TRANSPROC authorizing plaintiffs discharge was inadvertentlyreentered into the system and thepersonnel clerk issued plaintiffa DDForm 214 discharge certificate. (A.R. lO2, 439, 1826-31.) Plaintiffsubsequently left Fort Benning, his discharge certificate in hand. The following Monday, September 17,2001, the JAG Corps discoveredplaintiffs empty office and contacted Brower at USAPDA. (A.R. 449, 471.) Browerresponded

6 Following plaintiffsmeeting with the PEBLO, plaintifftold a colleague ofhis in the JAG Corps that he would not be discharged because the JAG Corps had stopped his medical board. CA.R. 462.) Plaintiffhad also made similar comments priorto the PEB's formal "fit" determination. Following aconversation with Brower in which Brower informed plaintiffthat his PEB determination was likely going to be reversed and that his case was on hold, plaintiff told both his subordinate and his supervisor that he would not be leaving the Army and that he intended to attend the JAG graduate course the following year. CA.R. 437, 449, 464.)


### 5thatthe authorization for plaintiffs discharge had been revoked and thatFortBenning had no authority to separate him. (A.R. 449.) Having not received an appeal from plaintiffconcerning his second PEB, USAPDA, through PDB, directed Fort Benningto issue a formal orderrevoking plaintiffs July 2nd discharge order, which FortBenning did. (A.R. 104,440,449.) Fort Benning informed plaintifflaterthat day that his discharge orders had been revoked. (A.R. 441.) The Army soon thereafter conducted an investigation into plaintiffs separation pursuant to Rule for Court-Martial 303. The investigation concluded that plaintiffs separation was invalid and he had knowingly and fraudulently procured his separation. (A.R. 12-16.) On October 29, 2001, the Army sentplaintiffa memorandum notifying him that it had concluded that he obtained an invalid separation and ordering him to report backto duty by November 5, 2001, else the Army would take "appropriate
measures to return [him] to military control." (A.R. EI05.) The Army also preferred a court-martial charge against plaintiffon November 1, 2001 for obtaining a fraudulent discharge in violation ofArticle 83 ofthe Uniform Code ofMilitary Justice ("UCMJ"), 10 U.S.c. § 883. 7 (A.R. 105.) The charge stated thatplaintiff"onor about 14 September 2001, by means ofknowingly presenting ORDERS 183-220 [sic] dated 01 July 2001 authorizing his release from active duty, when in fact he knew those orders were void, procure himselfto be separated from the U.S. Army." (Id.)

7 Article 83 provides that "Any person who
... (2) procures his own separation from the armed forces by knowingly false representation or deliberate concealment as to his eligibility for that separation
... shall be punished as acourt-martial may direct." 10 U.S.C. § 883.
6Plaintiffimmediately filed a lawsuit in the Middle District ofGeorgia seeking a temporary restraining order and a preliminary injunction enjoiningthe Army from enforcingthe October 29,2001 orders and declaring that plaintiffwas a civilian and not subject to military control. Plaintiffcontended that he hadreceived a valid discharge and that the Army could not assertjurisdiction overhim either on the basis that his discharge
was invalid or under Article 3(b) ofthe UCMJ, 10 U.S.C. § 803(b), which plaintiff contended was unconstitutional. Article 3(b)provides: Eachperson discharged from the armed forces who is later charged with having fraudulently obtainedhis discharge is
... subjectto trial by courtmartial on that charge and is after apprehension subjectto this chapter while in the custody ofthe armed forces for that trial. 10 U.S.C. § 803(b). Judge Lawson denied plaintiffs motion on November 14,2001, holding that Article 3(b) was constitutional, that the military therefore hadjurisdictionto court-martialplaintifffor fraudulent separation, and that a military tribunal was the best forum for determining whetherplaintiffsdischarge was valid, given the military'S relative competence and expertise in the subject. 

### Schaefer v. White, 174 F. Supp. 2d 1374, 1383-84 (M.D. Ga. 2001). Despite his continuing objectionto the Army'sjurisdiction, plaintiffthereafter returned to duty at Fort Benning and was assigned to work as a legal assistance attorney assisting service members and their families with a variety oflegal issues. (A.R. 222.) 

### In December 2001, the Army moved forward with the court-martial and appointed a JAG attorney as an investigating officer (10) for purpose ofconducting an impartial investigation into plaintiffs separation and to make a non-binding recommendation

7concerningthe charges, as required by Article 32 ofthe UCMJ, 10 U.S.C. § 832.8 (A.R. 217.) The IO issued his report on January 15, 2002, concluding that plaintiffs conduct, while duplicitous and unbecoming ofan officer, was not fraudulent because the bases for the discharge orders hadnotbeen overturned orrevoked on September 14, 2001, when he presented himselffor separation. (A.R. 107-14.) The Commanding General, however, nevertheless determined otherwise onthe recommendation ofhis StaffJudge Advocate, pursuantto Article 34 ofthe UCMJ, 10 U.S.C. § 834, andreferredthe fraudulent separation charge to a general court-martial on March 1,2002.9 (A.R.219.) Rather than proceed with his defense to the general court-martial, set to begin trial June 17, 2002, plaintiffthereafter submitted a voluntary Resignation for the Good ofthe Service ("RFGOS") on May 27, 2002. (A.R. 733.) PlaintiffsRFGOS stated that it was conditioned on plaintiffreceiving a "General under Honorable Conditions Discharge."

8 Article 32(a) provides: No charge or specification may be referred to a general court-martial for trial until a thorough and impartial investigation ofall the matters set forth therein has been made. This investigation shall include inquiry as to the truth ofthe matter set forth in the charges, consideration ofthe form ofcharges, and a recommendation as to the disposition which should be made ofthe case in the interest of justice and discipline. 10 U.S.C. § 832(a). 9 Article 34(a) provides: Before directing the trial ofany charge by general court-martial, the convening authority shall refer it to his staff judge advocate for consideration and advice. The convening authority may not refer a specification under a charge to a general court-martial for trial unless he has been advised in writing by the staff judge advocate that (l) the specification alleges an offense under this chapter; (2) the specification is warranted by the evidence indicated in the report ofinvestigation under [Article 32]
...; and (3) a court-martial would havejurisdiction over the accused and the offense. 10 U.S.C. § 834(a).
8(Jd.) OnJune 3, 2002, the Commanding General issuedplaintiffa General Officer Memorandum ofReprimand ("GOMOR"), which stated that plaintiffwas being "reprimanded for wrongfully obtaining a [discharge certificate] when [he] fully knewthat the basis for the issuance of[his] separation orders hadbeen overturned." (A.R. 220-21.) The GOMOR recounted plaintiffs conduct surrounding his discharge, concluding that plaintiff"traded [his] integrity for selfish gain and in the process proved [himself] completely untrustworthy." (Jd.) Plaintiffwas also issued an adverse OfficerEvaluation Report for the yearprecedingMay 2002, which concluded thatwhileplaintiffs work was "legally sufficient and generally satisfactory," he "didnot perform at the level one would expect ofa major" and "does not display any leadership skills norArmy values
... as he is self-serving and puts himselfoverthe mission." (A.R.223.) Plaintiffreceived a second discharge certificate on October 1,2002, discharging plaintifffrom theArmy. (A.R. 1014.) On September 8, 2004, plaintiffappliedtothe ABCMR for reliefpursuantto 10 U.S.C. § 1552. 10 Plaintiffrequested thatthe ABCMRdeclare his October 2002 discharge certificate null and void, reissue plaintiffa discharge certificate statingthat he was discharged on September 14, 2001, expunge from his military file his GOMOR, OER, and any references to his RFGOS, and stop the Army from its effortstorecoup the
severancepay he received in September2001. (A.R. 3.) In a 4I-page decision, the ABCMR denied plaintiffs requests onNovember 8, 2005, concludingthat: I) plaintiffs
10 10 U.S.C. § 1552(a)(l)provides: "The Secretary ofa military department may correct any military record ofthe Secretary's department when the Secretary considers it necessary to correct an error or remove an injustice."
9first discharge was without legal effect and would not have been issued but for an "administrative snafu"; 2) the Army wasjustified in revoking his discharge orders and directing that he return to duty; 3) the Army wasjustified in preferring fraudulent separation charges against him; and4) he failed to demonstrate that his GOMOR, his OER, and references to his RFGOS should be expunged from his file on account oferror
or injustice. I I (A.R.38-42.) Plaintiffthereafter filed this lawsuit on August 30, 2007, in whichhe alleges thatthe ABCMRacted arbitrarily, capriciously, and contrary to law in failing to award his requested relief. (CompI.**~~** 157-92.) Plaintiffalso alleges that Article 3(b) is unconstitutional, both on its face and as applied to plaintiff. (CompI.**~~** 110-56.) Defendant moved for summaryjudgmenton January 4,2008 and plaintiff cross-moved for summaryjudgmenton June 26, 2008. 

### DISCUSSION I. 

### Legal Standard 

### A. LegalStandard forSummaryJudgment Summaryjudgment should be rendered ifthe pleadings and the record "showthat there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P. 56(c). The burden ofestablishing that there is no genuine issue ofmaterial fact is on the moving party. 

### Celotex Corp. v. 

### Catrett, 477 U.S. 317, 322 (1986). Material facts are those "that might affectthe outcome ofthe suit under the governing law." 

### Anderson v. LibertyLobby, Inc., 477 U.S.
II The ABCMR also noted that it agreed with the case law holding Article 3Cb) ofthe UCMJ constitutional, citing Wickham v. Hall, 12 M.1. 145 (CMA 1981) and Schaefer, 174 F. Supp. 2d at 1374. CA.R.42.)
10242, 248 (1986). The Court must viewthe facts in the light most favorable to the nonmovant, givingthe nonmovant the benefit ofalljustifiable inferences derived from the evidence. Id. at 255. The nonmovant, however, may notrely merely on allegations, conclusory statements, or denials in its ownpleading, but must set out specific facts that would enable a reasonablejuryto find in its favor. Fed. R. Civ. P. 56(e); 

### Greene v. 

### Dalton, 164 F.3d 671,675 (D.C. Cir. 1999). 

### B. LegalStandard forReview of ABCMRDecisions Judicial review ofABCMRdecisions issued pursuant to 10 U.S.c. § 1552 is authorized under the Administrative Procedure Act ("APA"). 5 U.S.C. §§ 701, 

### etseq.; Piersall v. 

### Winter, 435 F.3d 319, 324 (D.C. Cir. 2006). Underthe APA, a Court may only set aside agency action that is "arbitrary, capricious, an abuse ofdiscretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). To prevail, a plaintiff mustprovide "cogent and clearly convincing evidence" satisfying this standard, 

### Mueller
v. 

### England, 404 F. Supp. 2d 51,55 (D.D.C. 2005), and must "overcomethe 'strong, but rebuttable, presumptionthat administrators ofthe military, like otherpublic officers, discharge their duties correctly, lawfully, and in good faith,'" 

### Frizelle v. 

### Slater, III F.3d 172,177 (D.C. Cir. 1997) (quoting 

### Collins v. 

### UnitedStates, 24 Cl. Ct. 32, 38 (1991)). In addition, as to those aspects ofthe ABCMR's decision that "rel[y] on a broad delegation from Congress ofdiscretion to use its inherentjudgmentto assess the merits ofan application, the court ... appl[ies] an especially deferential standard ofreview." 

### Epstein
v. 

### Geren, 539 F. Supp. 2d 267, 275 (D.D.C. 2008) (citing 

### Cone v. 

### Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000)). The Court must "determine only whetherthe Secretary's decision


### 11

### making process was deficient, not whether his decision was correct." Kreis v. Sec 'y

### of theAirForce, 866 F.2d 1508,1511 (D.C. Cir. 1989). Indeed, "the function of[the Court] is not to serve as a super correction boardthat reweighs the evidence." Charette v. 

### Walker, 996 F. Supp. 43, 50 (D.D.C. 1998). 

### III. Analysis 

### A. Validity of the FirstDischarge Plaintiffcontends that the ABCMR acted arbitrarily, capriciously, and contrary to lawby allowing the Army to violate its own regulations governing the reconsideration of
a medical discharge and, in turn, in determining that the September 14, 2001 discharge
was without legal effect. (Tr. ofMot. Hr'g at 10-11, Aug. 19,2008.) Ifthe Court agrees, plaintiffcontends, the Court must find the second discharge, the OER, and the GOMOR null and void because there is no indication offraud in the record and therefore the Army
was withoutjurisdiction over the plaintiffafter September 14,2001. (Jd. 

### at 18.) Defendant contends, conversely, that the ABCMR did not act arbitrarily, capriciously, or contrary to law in determining that plaintiffs alleged first discharge on September 14, 2001 was a legal nullity and that the Army's actions thereafterwerejustified. (Def.'s Mot. for Summ. J. at 7-11 [Dkt. #10].) Forthe following reasons, I agree. Plaintiffs threshold attack on the ABCMRdecision is that he received a facially valid discharge certificate based on orders that were not revoked until after his discharge and, therefore, underSmith 

### v. Vanderbush, 47 MJ. 56 (C.A.A.F. 1997), the Army

- not plaintiff

- must bearthe cost ofthe Army's "administrative snafu" involving TRANSPROC. (Pl.'s Cross-Mot. for Summ. J. at 3-9 [Dkt. #42].) As noted by Judge
12Lawson, however, 

### Vanderbush did not involve a discharge ofquestionable validity. 

### Schaefer, 174 F. Supp. 2d at 1380. In 

### Vanderbush, the Army intended, but failed, to "flag"the soldier's file, which wouldhave suspended any favorable personnel actions, and defendantreceived a discharge based onthe expiration ofhis term ofservice. 

### Vanderbush, 47 M.J. at 57. The U.S. Court ofAppeals for the Armed Forces held that the Army could not assert continuingjurisdiction overthe discharged soldier in orderto court-martial him, despite the administrative error, because the defendanthadreceived a discharge for which the underlying basis was valid: namely, his duty obligation had ended. 

### Id. at 60-61; 

### see also 

## Us. v. 

### Howard, 20 M.J. 353, 354-55 (C.M.A. 1985) (no continuingjurisdiction over soldierwhere "commandermade an informed decision to allow appellant to be discharged" and only later attempted to revoke the discharge in orderto court-martial him). Here, by contrast, USAPDA revoked the authority for plaintiffs discharge well before September 14,2001. When the underlying authority for the discharge is timely revoked, an error in delivering a discharge certificate does not effectuate a 

### validdischarge. 

### See 

## Us. v. Williams, 53 M.J. 316, 317 (C.A.A.F. 2000) (facially valid discharge certificate was properly revoked when military placed legal hold
on soldier hours priorto delivery ofthe discharge certificate); 

## Us. v. 

### Garvin, 26 M.J. 194, 195-96 (C.M.A. 1988) (where discharge authority revoked discharge orders priorto delivery "the mistaken delivery of[the] discharge certificate
... was not accomplished withthe intentrequired to effect a valid discharge"); 

### see also 

## us. v. 

### Harmon, 63 M.J. 98, 101 (C.A.A.F. 2006) ("the discharge authority musthave intended the discharge to take effect" in order for the delivery ofthe discharge certificate to terminate military
13

### jurisdiction). Accordingly, the ABCMRwas not arbitrary, capricious, or contrary to law in determining that plaintiffs first discharge was "without legal effect," (A.R. 40), based
on the USAPDA'srevocation ofthe authority to issue the discharge priorto plaintiffs receipt ofthe discharge certificate. Plaintiffs second attack centers on his interpretation ofArmy Regulation 635-40, which governs the PDES process. Notwithstanding the regulation's complexity, plaintiff contends that the regulation sets forth a clear division oflabor between USAPDA and U.S. Total Army Personnel Command ("PERSCOM"). While USAPDA is responsible for making the final decisions concerning whether a soldier is unfit for duty, PERSCOM is responsible for effecting final disposition after it receives USAPDA's decision. 12 

### Included in that division oflabor, plaintiffcontends, are material limitations on USAPDA's authority to reconsider cases in which discharge orders have been issued by PERSCOM such that USAPDA'ssua sponte reconsideration ofplaintiffs case, without having received it back from PERSCOM, rendered void both the PEB's reconsideration and USAPDA's revocation ofFortBenning's authority to discharge plaintiff. Therefore, plaintiffcontends, his discharge on September 14, 2001 was, in fact, valid and the

12 Chapter2 ofthe regulation, entitled "Responsibilities and Functions," provides that PERSCOM will, among otherthings, "(a) Operate the [PDES]
... [and] (b) Accomplish final administrative actions in processing physical disability cases; issue needed orders orother instructions for the [Secretary ofthe Army], based on decisions of[USAPDA]." Army Reg. 635-40**~** 2-3(a)-(b). In contrast, the chapterprovides that USAPDA, "underthe operational control of[PERSCOM]," will, among otherthings, "operate the [PDES], to include
... (b) Developing the policies, procedures, and programs ofthe system ... [and] (f) Making the final decision whether a solider is unfitbecause ofphysical disability." Id.**~** 2-4(b), (f).


### 14ABCMRwas arbitrary, capricious, and contrary to law to find otherwise. (PI.'s CrossMot. for Summ. J. at 13-27.) I disagree. The record reflects that at some time priorto 2001, the PERSCOM office responsible for accomplishing final administrative actions in the PDES process - the Physical Disability Branch ("PDB")

- physically moved from PERSCOMto Walter Reed Army Medical Center, the location ofUSAPDA. (A.R. 251, 274,1549,1566.) As a result, PDB became, in effect, an adjunct ofUSAPDA. Ratherthan fax USAPDA's final decisions to PDB for final disposition, as it had previously done, USAPDA was able to walk down the hall and instruct PDB to transmit the appropriate instructions, via the TRANSPROC system, to the appropriate installation. (A.R. 274, 1557-58.) Thus, when USAPDA approved the PEB's first finding that plaintiffwas unfit, USAPDA, without
ever contactingPERSCOM's headquarters, instructed PDB to transmit the necessary authorization to FortBenning for it to issue plaintiffsJuly 2, 2001 discharge orders. (A.R. 444.) And similarly, when USAPDAreceived the JAG Corps' assessment of plaintiffsphysical capabilities in early August 2001, it instructed PDB to revoke the authorization to discharge plaintiff, again without contacting PERSCOM's headquarters. 13 (A.R. 255, 444.) Itis well-settled that federal agencies, includingthe Army, are required to follow their own rules and regulations. 

### Steenholdt v. 

### FAA, 314 F.3d 633, 639 (D.C. Cir. 2003) (construing 

### UnitedStates ex reI. Accardiv. 

### Shaughnessy, 347 U.S. 260 (1954)); 

### see also
13 Col. Bell, who was deputy commander for USAPDA at the time and had final authority over its day-to-day operations, testified during the Middle District ofGeorgia action that as a result ofPDB'smove to USAPDA, he was both USAPDA and PERSCOM. CAR. 250,251.)
15

### Martin v. Sec

### yof Army, 455 F. Supp. 634, 638 (D.D.C. 1977) ("It 

### is establishedbeyond peradventure that the military, like any other agency, is bound by its own regulations."). Contrary to plaintiffs contentions, however, the ABCMR's decision did not overtly or implicitly bless a violation ofthe Army's own regulations. Rather, the ABCMR found, after an extensive review ofthe facts and relevant regulations, that the USAPDA was within its authority underthe regulation to return plaintiffs case to the PEB for reconsideration and that, as a result, the second PEB obviatedthe first and the first discharge lacked validity because the authority underlying the discharge had been revoked. (A.R. 38-40.) According the ABCMRthe due deference it is owed and recognizing the military's relative expertise in interpreting military regulations and procedures, see Lawrence v. 

### McCarthy, 344 F.3d467,473-74 (5th Cir. 2003), this Court does not find the ABCMR's interpretation arbitrary, capricious, or otherwise not in accordance with law. It

### is clear from the ABCMR's41-page memorandum decision that it considered both the structure and the specific provisions ofArmy Regulation 635-40, as well as plaintiffsproffered interpretation. (A.R. 8-9, 33-35, 38-39.) The ABCMRdetermined that "the authority to act upon PEB proceedings for the Secretary ofthe Army rests with the PEB itself, or as in this case, the USAPDA" and that "[c]ounsel's argument that [plaintiffs] case could not be reconsidered by PEB or the USAPDA until afterthey received the case back from PERSCOM is without merit." (A.R. 38.) Noting that while the "regulation
... is outdated" and "the functions ofPERSCOM in this respect have been assumed by the [PDB]," the ABCMR found that "the first PEB finding never went
16

### to PERSCOM, and so the requirement for PERSCOM to authorize reconsideration was not triggered, contrary to [plaintiffs] claim." (Jd.) 

### The ABCMR's interpretation is sufficiently supported by the regulation and the regulation's implementation in practiceto withstand review. The regulation makes clear thatUSAPDA is the final decision-making authority in the PDES process, the authority responsible for reviewing PEB proceedings and findings, and the authority responsible for "developingthe policies, procedures, and programs ofthe system." Army Reg. 635- 40**~** 

### 2-4(b), (e), (t). 

### PERSCOM, by contrast, is tasked with the purely ministerial role of issuing orders or disposition instructions "[blased on the final decision ofUSAPDA." Id.**~** 

### 4-24(b); 

### see also id.**~** 

### 2-3(b) (PERSCOMwill "[a]ccomplish final administrative actions in processingphysical disability cases; issue needed orders or other instructions
..

.based on the decisions ofrUSAPDA]"). While USAPDA operates formally underthe PERSCOMumbrella, id.**~** 

### 2-3, USAPDA has day-to-day responsibility for overseeing the PDES process and for acting on PEB proceedings. Forexample, USAPDA

- not PERSCOM

- is responsible for reviewing case records to ensure the findings are "just, equitable, consistent with the facts, and in keeping with the provisions oflaw and regulations," id.**~** 

### 4-22(b)(3), and USAPDA

- not PERSCOM

- is responsible for returning cases to PEB when "caserecords show such action is in the best interests ofthe solider or the Army," id.**~** 

### 4-22(c)(2). USAPDA's authority in this regard is born out by record. Evenprior to PDB's physical re-location from PERSCOMto USAPDA's office at Walter Reed, PDB effected and revoked final dispositions at USAPDA's direction, without independentreview on
17

### PERSCOM'spart. (A.R. 1566-67.) PDB, consistent with the ministerial role given PERSCOM in the regulation, merely took the actions necessary to implement USAPDA's decisions, including whetherto recall certain cases. (Id.) 

### PDB'spractice in this respect is at least equally as consistent with the regulation
as plaintiffs interpretation. Plaintiffrelies heavily on paragraph 4-24 and Appendix paragraph E-9(e) ofthe regulation, which state, respectively:

and 4-24. Disposition by PERSCOM PERSCOMwill dispose ofthe case by publishing orders or issuingproper instructions to subordinate headquarters, orreturn any disability evaluation case to USAPDA for clarification orreconsideration when newly discovered evidence becomes available and is not reflected in the findings and recommendations.

E-9. Final disposition instructions.
e. Requests for exception to establisheddischarge or retirementdate. 

### Request for deviation from established discharge date or amendment or revocation ofretirement orders for otherthan medical reasons will be submitted, withjustification, to PERSCOM ([Physical Disability Branch

## D .

. . . USAPDA will decide whetherthe case should be reconsidered by the PEB. USAPDA may requestPERSCOM cancel discharge instructions, or amend orrevoke retirement orders. Army Reg. 635-40**~~** 

### 4-24, App. E-9(e). While plaintiffargues that these provisions require that PERSCOM review each case in which discharge orders have been issued to determine ifthe new evidence warrants reconsideration, neitherprovision explicitly gives PERSCOM such an affirmative role. Rather, both indicate that it is USAPDA that has the decision-making role, while PERSCOM is tasked only with formally returning the
case to USAPDA or canceling discharge orders at USAPDA's request. The ABCMR's

18

### decision that USAPOA was within its authority to reconsiderplaintiffs case and revoke the authority for his discharge is thus neither arbitrary, capricious, nor contrary to law. Moreover, andperhaps most critically, plaintiffs interpretation ofPERSCOM's role in the POES process does not square with the conclusion that he contends this Court should reach: namely, that his first discharge was valid. Plaintiffs first PEB finding, which resulted in his July 2, 2001 discharge orders, neverwentto orthrough PERSCOM, but rather, went from USAPOA to the Fort Benning transition point via POB. (A.R. 444.) Accordingly, ifthe second PEB and USAPOA's revocation ofauthority to discharge plaintiffwere invalid due to USAPOA's failure to requestplaintiffs case back from PERSCOM, as plaintiffcontends, so too were plaintiffs first discharge orders invalid due to USAPOA's failure to send plaintiffs case to PERSCOM for final disposition. In short, plaintiffs argument is one ofform over substance on steroids! Accordingly, I do not find the ABCMR's decision that USAPOA and the PEB had the authority to reconsider plaintiffs case arbitrary, capricious, or contrary to law. I also do not find arbitrary, capricious, orcontrary to law the ABCMR's related conclusions thatthe second PEB'sreconsideration obviated the first PEB's findings and that USAPOA effectively revoked the authority for the September 14, 2001 discharge before that date. (A.R. 39-40.) Indeed, the form transmitting the second PEB's "fit" determination, which plaintiffreviewed and signed, stated on its face thatthe PEB's first

19determination was superseded.14 (A.R. 100,406.) And while the second PEB's findings
were not yet final until afterthe period for plaintiff's filing ofan appeal ran, on September 17, 2001, the record reflects that ifthe clerk at the Fort Benningtransition pointhadremembered that the authorization for plaintiff's discharge had beenrevoked, she would not have givenplaintiffa discharge certificate. (A.R.439.) The ABCMR, therefore, was not arbitrary, capricious, or contrary to law to determine thatplaintiff's September 14,2001 discharge was a legal nullity and thatthe Army's formal revocation ofhis discharge orders and orderthat plaintiffreturn to duty werejustified. (A.R. 40); 

### Garvin, 26 M.1. at 195-96. 

### B. Plaintiff'SRemaining Claims Plaintiffalso asserts facial and as-applied challenges to the constitutionality of Article 3(b) ofthe UCMJ, 10 U.S.C. § 803(b).15 Plaintiff, however, lacks standing to do
so. "Tohave Article III standing, a plaintiffmust demonstrate an 'actual or immediate' 'injury-in-fact' that is 'fairly traceable' to the challenged conduct and 'likely' to be 'redressed by a favorable decision.'" 

### Tozzi v. Us. Dep't of Health & 

### Human Servs., 271 F.3d 301,307 (D.C. Cir. 2001) (quoting

### Lujan v. Defenders ofWildlife, 504 U.S. 555, 560-561 (1992)). Here, plaintiffchose to voluntarily resign from the Army in October

14 Indeed, paragraph4-19(p)(I) ofArmy Regulation 635-40 provides that "[w]hennew findings are made by the PEB, they become the only findings on which later action will be taken." Army Reg. 635-40**~** 4-19(p)(1). 15 Plaintiffs Article 3(b) challenge is essentially a reassertion ofthe arguments he presented to the Middle District ofGeorgia in support ofhis motion for a temporary restraining order and preliminary injunction, which was denied. See Schaefer, 174 F. Supp. 2d at 1382-83. Plaintiffs challenge differs in this case only in that plaintiffadds related as-applied challenges to the constitutionality ofArticles 32 and 34 ofthe UCMJ, 10 U.S.C. §§ 832, 834.
202002 rather than proceed with his defense to the court-martial proceedingthat was then pending. Accordingly, even ifthe Court were to declare Article 3(b) unconstitutional, as plaintiffrequests, such a declaration would not redress any injury plaintiffalleges he has suffered. See Miller v. Roche, No. 03-1742,2006 WL 326006, *3-4 (D.D.C. Feb. 10, 2006). Such a declaration would not invalidate his October 2002 discharge or lead this Courtto orderthat his military file be expunged ofall materials related to events after September 14,2001, because this Courthas already held above that the ABCMR's decision that plaintiffs first discharge was a legal nullity was neither arbitrary, capricious, nor contrary to law. 16 Accordingly, because I can issue no orderthat would redress plaintiffs alleged injury, he lacks standingto pursue his constitutional claims. Finally, the Court finds noreason to overturn the ABCMR's refusal to remove from plaintiffs official military file his 2001-2002 OER, June 2002 GOMOR, or references to his RFGOS. Beyond alleging that the Army lackedjurisdiction over plaintiffto issue these documents, plaintiffprovides no basis on whichto find the ABCMR's decision arbitrary or capricious. Moreover, in this area courts must give the ABCMR "an unusually deferential application ofthe 'arbitrary and capricious' standard' ofthe APA." Kreis, 866 F.2d at 1514. Here again, the ABCMR's decision contains an extensive review ofthe facts and provides explicitreasons for denyingplaintiffs requested relief. (A.R40-41); Kreis, 866 F.2d at 1514-15 (the Army "mustgive a reason

16 Nevertheless, even iflhadjurisdictionto consider plaintiffs constitutional challenges, I see no reason to deviate from Judge Lawson's earlier determination that Article 3(b) is constitutional. Schaefer, 174 F. Supp. 2d at 1382-83 (citing UnitedStates v. Cole, 24 M.J. 18,22 (CMA 1987)).
21

### that a court can measure, albeit with all due deference, againstthe'arbitrary and capricious' standard ofthe APA"). The ABCMRneither failed to consider any of plaintiffs arguments nor issued a decision as to any ofthe documents thatwas arbitrary
or capricious. CONCLUSION 

### Thus, for all ofthe above reasons, the Court GRANTS defendant's Motion for Summary Judgment and DENIES plaintiffs Cross-Motion for Summary Judgment. An appropriate Orderwill issue with this Memorandum Opinion.

# ~~ United States DistrictJudge



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