UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

MALCOLM G. SCHAEFER, ) 

) 

) 

) 

v. 

PETE GEREN, 

Plaintiff, 

) Civil Case No. 07-1550 (RJL) 

) 

) 

SECRETARY OF THE 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 of the Army, 

seeking to reverse the Army Board for Correction of Military Records' ("ABCMR") 

decision denying his request that certain records in his official military personnel file be 

altered or expunged. Before the Court are plaintiffs and defendant's cross-motions for 

summary judgment. Because the ABCMR's decision was neither arbitrary, capricious, 

nor unlawful, plaintiffs motion for summary judgment is DENIED and defendant's 

motion for summary judgment is GRANTED. 

BACKGROUND 

In the fall of 2000, plaintiff was an active member of the U.S. Army Judge 

Advocate General's Corps ("JAG Corps") assigned to the Trial Defense Service field 

office at Fort Benning, Georgia. (Compl. ~~ 11, 13 [Dkt. #1].) He had attended the 

University of Virginia School of Law at the Army's expense, graduating in 1996, and 
was serving a six-year active duty service obligation. (A.R.226.) Due to the physical 

deterioration of his knees, plaintiff s physician referred him to an administrative 

screening board. known as a MedicaliMSO Retention Board ("MMRB"), for evaluation 

of his ability to perform the physical requirements of his specialty in a worldwide field 

environment. I (A.R. 228); see generally Physical Performance Evaluation System, Army 

Reg. 600-60 ~ 2-1 (Oct. 31, 1985).2 On September 27,2000, upon plaintiffs request, the 

MMRB Convening Authority referred plaintiffs case to a Medical Evaluation Board 

CoMEB") after finding that his "ability to satisfactorily perform [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 of a physical disability to perform his or her duties and, as a result, should be 

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 plaintiff did not meet the 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.) On June 11,2001, the PEB at 

Plaintiff was unable to run, parachute, walk long distances, march with a rucksack, or 

conduct other military activities that included impact on his knees. (Compi. ~ 14.) 

2 Since the filing of the Complaint in this case on August 30, 2007, many of the regulations 

governing the relevant Army conduct have been revised. E.g., Physical Performance Evaluation 

System, Army Reg. 600-60 (Feb. 28, 2008). For purposes of this decision, the Court references 

and applies the versions of the regulations that were in force at the time of the 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 of the 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. 

2 
Fort Sam in Houston, Texas, determined that plaintiff was medically unfit and 

recommend he be separated from the Army with severance pay and a zero percent 

disability (the "first PEB"). (A.R. 96.) After plaintiff concurred with the findings, the 

PEB forwarded plaintiff's case to the U.S. Army Physical Disability Agency 

("USAPDA") in Washington, DC - the third step in the PDES process - which reviewed 

the unopposed recommendation. (A.R. 97,406, 750, 1235, 1705-06.) At USAPDA's 

direction, the Physical Disability Branch ("PDB") then used the TRANSPROC computer 

notification system to authorize the Fort Benning transition office to issue discharge 

orders - the fourth and final step in the process.

4 (A.R. 528, 750, 767, 772.) On July 2, 

2001, Fort Benning printed Orders 183-2200, which ordered plaintiff to take certain 

preparatory actions and to appear at the transition point for processing on his appointed 

discharge date, September 14,2001. (A.R. 98.) 

During this process, plaintiff had taken 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's pending discharge while updating the 

office's database and, due to his surprise, contacted Dennis Brower, the legal advisor to 

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 of his local unit to which he 

was attached for administrative support - knew from the outset that plaintiff was being 

considered for a medical discharge, and plaintiff asked him to keep it confidential. CA.R. 408, 

460.) Following the PEB's recommendation that he was unfit, plaintiff asked the PEB Liaison 

Officer "keep all of this quiet" out of concern that ifhis JAG supervisors found out, they would 

try to cancel the PEB and retain him on active duty. CA.R. 410.) Indeed, plaintiff did not inform 

anyone in his supervisory chain in the JAG Corps until after he received his discharge orders on 

July 2, 200 I, 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 ofperfonnance reviews from plaintiffs JAG Corps 

supervisors. (A.R. 449, 1238.) Brower asked Colonel Clyde Tate, chief ofPPTO, 

whether the JAG Corps was interested in submitting performance infonnation about 

plaintiff, to which Col. Tate answered it was. (A.R.446.) The JAG Corps thereafter 

submitted several of plaintiff s officer evaluation reports and, on August 10, 2001, Col. 

Tate submitted a memorandum to USAPDA stating that he 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 Brower to send the new infonnation to the PEB in Texas to see if the 

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 

plaintiff and to put his 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 working properly. (A.R. 444.) PDB accordingly contacted 

the Fort Benning transition point both by telephone and by facsimile to let them know 

that plaintiff was 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.) 

4 
On August 30, 2001, the PEB issued a new determination that plaintiff was, in 

fact, fit for continued active duty (the "second PEB"), which the Fort Benning PEB 

Liaison Officer ("PEBLO") communicated to plaintiff on September 5th. (A.R. 100-01.) 

Plaintiff did not concur with the finding. (ld.) The PEBLO informed plaintiff that he had 

ten days in which to submit a written appeal, which plaintiff and the PEBLO agreed 

would be due Monday, September 17th. (A.R. 101,406.) In response to plaintiffs 

comment during the meeting that he had discharge orders and was in the process of 

clearing, the PEBLO responded that his case was "on hold.,,6 (A.R. 406.) On the advice 

of counsel, however, plaintiff nevertheless proceeded to move forward with his outprocessing and, on September 14th, three days after the terrorist attacks of September 11, 

2001, plaintiff appeared 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 

of Fort Benning's authority to discharge plaintiff, the code in TRANSPROC authorizing 

plaintiffs discharge was inadvertently reentered into the system and the personnel clerk 

issued plaintiff a DD Form 214 discharge certificate. (A.R. lO2, 439, 1826-31.) 

Plaintiff subsequently left Fort Benning, his discharge certificate in hand. 

The following Monday, September 17,2001, the JAG Corps discovered plaintiffs 

empty office and contacted Brower at USAPDA. (A.R. 449, 471.) Brower responded 

6 Following plaintiffs meeting with the PEBLO, plaintiff told a colleague of his in the 

JAG Corps that he would not be discharged because the JAG Corps had stopped his medical 

board. CA.R. 462.) Plaintiff had also made similar comments prior to the PEB's formal "fit" 

determination. Following a conversation with Brower in which Brower informed plaintiff that 

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.) 

5 
that the authorization for plaintiffs discharge had been revoked and that Fort Benning 

had no authority to separate him. (A.R. 449.) Having not received an appeal from 

plaintiff concerning his second PEB, USAPDA, through PDB, directed Fort Benning to 

issue a formal order revoking plaintiffs July 2nd discharge order, which Fort Benning 

did. (A.R. 104,440,449.) Fort Benning informed plaintiff later that 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 sent plaintiff a memorandum notifying 

him that it had concluded that he obtained an invalid separation and ordering him to 

report back to 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 plaintiff on November 1, 2001 for obtaining a fraudulent 

discharge in violation of Article 83 of the Uniform Code of Military Justice ("UCMJ"), 

10 U.S.c. § 883. 7 (A.R. 105.) The charge stated that plaintiff "on or about 14 September 

2001, by means of knowingly 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 himself to 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 a court-martial may direct." 10 U.S.C. § 883. 

6 
Plaintiff immediately filed a lawsuit in the Middle District of Georgia seeking a 

temporary restraining order and a preliminary injunction enjoining the Army from 

enforcing the October 29,2001 orders and declaring that plaintiff was a civilian and not 

subject to military control. Plaintiff contended that he had received a valid discharge and 

that the Army could not assert jurisdiction over him either on the basis that his discharge 

was invalid or under Article 3(b) of the UCMJ, 10 U.S.C. § 803(b), which plaintiff 

contended was unconstitutional. Article 3(b) provides: 

Each person discharged from the armed forces who is later charged with 

having fraudulently obtained his discharge is ... subject to trial by courtmartial on that charge and is after apprehension subject to this chapter 

while in the custody of the 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 had jurisdiction to 

court-martial plaintiff for fraudulent separation, and that a military tribunal was the best 

forum for determining whether plaintiffs discharge 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 objection to the Army's jurisdiction, plaintiff thereafter 

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 of legal 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 of conducting an impartial 

investigation into plaintiffs separation and to make a non-binding recommendation 

7 
concerning the charges, as required by Article 32 of the 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 of an officer, was not fraudulent because the bases for 

the discharge orders had not been overturned or revoked on September 14, 2001, when he 

presented himself for separation. (A.R. 107-14.) The Commanding General, however, 

nevertheless determined otherwise on the recommendation of his Staff Judge Advocate, 

pursuant to Article 34 of the UCMJ, 10 U.S.C. § 834, and referred the 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, plaintiff thereafter submitted a voluntary Resignation for the Good of the Service 

("RFGOS") on May 27, 2002. (A.R. 733.) Plaintiffs RFGOS stated that it was 

conditioned on plaintiff receiving 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 of all the matters set forth therein has been 

made. This investigation shall include inquiry as to the truth of the matter set forth 

in the charges, consideration of the form of charges, and a recommendation as to 

the disposition which should be made of the case in the interest of justice and 

discipline. 

10 U.S.C. § 832(a). 

9 Article 34(a) provides: 

Before directing the trial of any 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 of investigation 

under [Article 32] ... ; and (3) a court-martial would have jurisdiction over the 

accused and the offense. 

10 U.S.C. § 834(a). 

8 
(Jd.) On June 3, 2002, the Commanding General issued plaintiff a General Officer 

Memorandum of Reprimand ("GOMOR"), which stated that plaintiff was being 

"reprimanded for wrongfully obtaining a [discharge certificate] when [he] fully knew that 

the basis for the issuance of [his] separation orders had been 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.) Plaintiff was also issued an adverse Officer Evaluation 

Report for the year preceding May 2002, which concluded that while plaintiffs work was 

"legally sufficient and generally satisfactory," he "did not perform at the level one would 

expect of a major" and "does not display any leadership skills nor Army values ... as he 

is self-serving and puts himself over the mission." (A.R.223.) Plaintiff received a 

second discharge certificate on October 1,2002, discharging plaintiff from the Army. 

(A.R. 1014.) 

On September 8, 2004, plaintiff applied to the ABCMR for relief pursuant to 10 

U.S.C. § 1552. 10 Plaintiff requested that the ABCMR declare his October 2002 discharge 

certificate null and void, reissue plaintiff a discharge certificate stating that 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 efforts to recoup the 

severance pay he received in September 2001. (A.R. 3.) In a 4 I-page decision, the 

ABCMR denied plaintiffs requests on November 8, 2005, concluding that: I) plaintiffs 

10 10 U.S.C. § 1552(a)(l) provides: "The Secretary of a military department may correct 

any military record of the Secretary's department when the Secretary considers it necessary to 

correct an error or remove an injustice." 

9 
first discharge was without legal effect and would not have been issued but for an 

"administrative snafu"; 2) the Army was justified in revoking his discharge orders and 

directing that he return to duty; 3) the Army was justified in preferring fraudulent 

separation charges against him; and 4) he failed to demonstrate that his GOMOR, his 

OER, and references to his RFGOS should be expunged from his file on account of error 

or injustice. I I (A.R.38-42.) Plaintiff thereafter filed this lawsuit on August 30, 2007, in 

which he alleges that the ABCMR acted arbitrarily, capriciously, and contrary to law in 

failing to award his requested relief. (CompI. ~~ 157-92.) Plaintiff also alleges that 

Article 3(b) is unconstitutional, both on its face and as applied to plaintiff. (CompI. ~~ 

110-56.) Defendant moved for summary judgment on January 4,2008 and plaintiff 

cross-moved for summary judgment on June 26, 2008. 

DISCUSSION 

I. Legal Standard 

A. Legal Standard for Summary Judgment 

Summary judgment should be rendered if the pleadings and the record "show that 

there is no genuine issue as to any material fact and that the movant is entitled to 

judgment as a matter of law." Fed. R. Civ. P. 56(c). The burden of establishing that 

there is no genuine issue of material fact is on the moving party. Celotex Corp. v. 

Catrett, 477 U.S. 317, 322 (1986). Material facts are those "that might affect the 

outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 

II The ABCMR also noted that it agreed with the case law holding Article 3Cb) of the 

UCMJ constitutional, citing Wickham v. Hall, 12 M.1. 145 (CMA 1981) and Schaefer, 174 F. 

Supp. 2d at 1374. CA.R.42.) 

10 
242, 248 (1986). The Court must view the facts in the light most favorable to the 

nonmovant, giving the nonmovant the benefit of all justifiable inferences derived from 

the evidence. Id. at 255. The nonmovant, however, may not rely merely on allegations, 

conclusory statements, or denials in its own pleading, but must set out specific facts that 

would enable a reasonable jury to find in its favor. Fed. R. Civ. P. 56(e); Greene v. 

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

B. Legal Standard for Review of ABCMR Decisions 

Judicial review of ABCMR decisions issued pursuant to 10 U.S.c. § 1552 is 

authorized under the Administrative Procedure Act ("APA"). 5 U.S.C. §§ 701, et seq.; 

Piersall v. Winter, 435 F.3d 319, 324 (D.C. Cir. 2006). Under the APA, a Court may 

only set aside agency action that is "arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). To prevail, a plaintiff 

must provide "cogent and clearly convincing evidence" satisfying this standard, Mueller 

v. England, 404 F. Supp. 2d 51,55 (D.D.C. 2005), and must "overcome the 'strong, but 

rebuttable, presumption that administrators of the military, like other public 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. United States, 24 Cl. Ct. 32, 38 (1991)). In 

addition, as to those aspects of the ABCMR's decision that "rel[y] on a broad delegation 

from Congress of discretion to use its inherent judgment to assess the merits of an 

application, the court ... appl[ies] an especially deferential standard of review." 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 whether the Secretary's decision 

11 
making process was deficient, not whether his decision was correct." Kreis v. Sec 'y of 

the Air Force, 866 F.2d 1508,1511 (D.C. Cir. 1989). Indeed, "the function of [the Court] 

is not to serve as a super correction board that reweighs the evidence." Charette v. 

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

III. Analysis 

A. Validity of the First Discharge 

Plaintiff contends that the ABCMR acted arbitrarily, capriciously, and contrary to 

law by 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. of Mot. Hr'g at 10-11, Aug. 19,2008.) If the Court agrees, 

plaintiff contends, the Court must find the second discharge, the OER, and the GOMOR 

null and void because there is no indication of fraud in the record and therefore the Army 

was without jurisdiction over the plaintiff after 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 thereafter were justified. (Def.'s 

Mot. for Summ. J. at 7-11 [Dkt. #10].) For the following reasons, I agree. 

Plaintiff s threshold attack on the ABCMR decision is that he received a facially 

valid discharge certificate based on orders that were not revoked until after his discharge 

and, therefore, under Smith v. Vanderbush, 47 MJ. 56 (C.A.A.F. 1997), the Army - not 

plaintiff - must bear the cost of the Army's "administrative snafu" involving 

TRANSPROC. (Pl.'s Cross-Mot. for Summ. J. at 3-9 [Dkt. #42].) As noted by Judge 

12 
Lawson, however, Vanderbush did not involve a discharge of questionable validity. 

Schaefer, 174 F. Supp. 2d at 1380. In Vanderbush, the Army intended, but failed, to 

"flag" the soldier's file, which would have suspended any favorable personnel actions, 

and defendant received a discharge based on the expiration of his term of service. 

Vanderbush, 47 M.J. at 57. The U.S. Court of Appeals for the Armed Forces held that 

the Army could not assert continuing jurisdiction over the discharged soldier in order to 

court-martial him, despite the administrative error, because the defendant had received 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 

continuing jurisdiction over soldier where "commander made an informed decision to 

allow appellant to be discharged" and only later attempted to revoke the discharge in 

order to 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 valid discharge. 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 prior to delivery of the discharge certificate); Us. v. Garvin, 26 M.J. 

194, 195-96 (C.M.A. 1988) (where discharge authority revoked discharge orders prior to 

delivery "the mistaken delivery of [the] discharge certificate ... was not accomplished 

with the intent required to effect a valid discharge"); see also us. v. Harmon, 63 M.J. 98, 

101 (C.A.A.F. 2006) ("the discharge authority must have intended the discharge to take 

effect" in order for the delivery of the discharge certificate to terminate military 

13 
jurisdiction). Accordingly, the ABCMR was not arbitrary, capricious, or contrary to law 

in determining that plaintiffs first discharge was "without legal effect," (A.R. 40), based 

on the USAPDA's revocation of the authority to issue the discharge prior to plaintiffs 

receipt of the discharge certificate. 

Plaintiffs second attack centers on his interpretation of Army Regulation 635-40, 

which governs the PDES process. Notwithstanding the regulation's complexity, plaintiff 

contends that the regulation sets forth a clear division of labor 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 of labor, plaintiff contends, are material limitations on 

USAPDA's authority to reconsider cases in which discharge orders have been issued by 

PERSCOM such that USAPDA's sua sponte reconsideration of plaintiffs case, without 

having received it back from PERSCOM, rendered void both the PEB's reconsideration 

and USAPDA's revocation of Fort Benning's authority to discharge plaintiff. Therefore, 

plaintiff contends, his discharge on September 14, 2001 was, in fact, valid and the 

12 Chapter 2 of the regulation, entitled "Responsibilities and Functions," provides that 

PERSCOM will, among other things, "(a) Operate the [PDES] ... [and] (b) Accomplish final 

administrative actions in processing physical disability cases; issue needed orders or other 

instructions for the [Secretary of the Army], based on decisions of [USAPDA]." Army Reg. 

635-40 ~ 2-3(a)-(b). In contrast, the chapter provides that USAPDA, "under the operational 

control of [PERSCOM]," will, among other things, "operate the [PDES], to include ... (b) 

Developing the policies, procedures, and programs of the system ... [and] (f) Making the final 

decision whether a solider is unfit because of physical disability." Id. ~ 2-4(b), (f). 

14 
ABCMR was 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 prior to 2001, the PERSCOM office 

responsible for accomplishing final administrative actions in the PDES process - the 

Physical Disability Branch ("PDB") - physically moved from PERSCOM to Walter Reed 

Army Medical Center, the location ofUSAPDA. (A.R. 251, 274,1549,1566.) As a 

result, PDB became, in effect, an adjunct ofUSAPDA. Rather than 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 plaintiff was unfit, USAPDA, without 

ever contacting PERSCOM's headquarters, instructed PDB to transmit the necessary 

authorization to Fort Benning for it to issue plaintiffs July 2, 2001 discharge orders. 

(A.R. 444.) And similarly, when USAPDA received the JAG Corps' assessment of 

plaintiffs physical 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.) 

It is well-settled that federal agencies, including the Army, are required to follow 

their own rules and regulations. Steenholdt v. FAA, 314 F.3d 633, 639 (D.C. Cir. 2003) 

(construing United States ex reI. Accardi v. 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 of Georgia action that as a 

result ofPDB's move to USAPDA, he was both USAPDA and PERSCOM. CAR. 250,251.) 

15 
Martin v. Sec y of Army, 455 F. Supp. 634, 638 (D.D.C. 1977) ("It is established beyond 

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 of the Army's own regulations. Rather, the ABCMR found, 

after an extensive review of the facts and relevant regulations, that the USAPDA was 

within its authority under the regulation to return plaintiff s case to the PEB for 

reconsideration and that, as a result, the second PEB obviated the first and the first 

discharge lacked validity because the authority underlying the discharge had been 

revoked. (A.R. 38-40.) According the ABCMR the due deference it is owed and 

recognizing the military's relative expertise in interpreting military regulations and 

procedures, see Lawrence v. McCarthy, 344 F.3d 467,473-74 (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's 41-page memorandum decision that it considered 

both the structure and the specific provisions of Army Regulation 635-40, as well as 

plaintiffs proffered interpretation. (A.R. 8-9, 33-35, 38-39.) The ABCMR determined 

that "the authority to act upon PEB proceedings for the Secretary of the 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 after they 

received the case back from PERSCOM is without merit." (A.R. 38.) Noting that while 

the "regulation ... is outdated" and "the functions of PERSCOM 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 practice to withstand review. The regulation makes clear 

that USAPDA is the final decision-making authority in the PDES process, the authority 

responsible for reviewing PEB proceedings and findings, and the authority responsible 

for "developing the policies, procedures, and programs of the 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 "[b lased on the final decision of USAPDA." Id. 

~ 4-24(b); see also id. ~ 2-3(b) (PERSCOM will "[a]ccomplish final administrative 

actions in processing physical disability cases; issue needed orders or other instructions .. 

. based on the decisions of rUSAPDA ]"). While USAPDA operates formally under the 

PERSCOM umbrella, id. ~ 2-3, USAPDA has day-to-day responsibility for overseeing 

the PDES process and for acting on PEB proceedings. For example, 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 of law and 

regulations," id. ~ 4-22(b)(3), and USAPDA - not PERSCOM - is responsible for 

returning cases to PEB when "case records show such action is in the best interests of the 

solider or the Army," id. ~ 4-22(c)(2). 

USAPDA's authority in this regard is born out by record. Even prior to PDB's 

physical re-location from PERSCOM to USAPDA's office at Walter Reed, PDB effected 

and revoked final dispositions at USAPDA's direction, without independent review on 

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PERSCOM's part. (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 whether to recall certain cases. (Id.) 

PDB 's practice in this respect is at least equally as consistent with the regulation 

as plaintiff s interpretation. Plaintiff relies heavily on paragraph 4-24 and Appendix 

paragraph E-9( e) of the regulation, which state, respectively: 

and 

4-24. Disposition by PERSCOM 

PERSCOM will dispose of the case by publishing orders or issuing proper 

instructions to subordinate headquarters, or return any disability evaluation 

case to USAPDA for clarification or reconsideration 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 established discharge or retirement date. 

Request for deviation from established discharge date or amendment or 

revocation of retirement orders for other than medical reasons will be 

submitted, with justification, to PERSCOM ([Physical Disability Branch D . . . . USAPDA will decide whether the case should be reconsidered by the 

PEB. USAPDA may request PERSCOM cancel discharge instructions, or 

amend or revoke retirement orders. 

Army Reg. 635-40 ~~ 4-24, App. E-9( e). While plaintiff argues that these provisions 

require that PERSCOM review each case in which discharge orders have been issued to 

determine if the new evidence warrants reconsideration, neither provision 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 

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decision that USAPOA was within its authority to reconsider plaintiffs case and revoke 

the authority for his discharge is thus neither arbitrary, capricious, nor contrary to law. 

Moreover, and perhaps 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, never went to or through PERSCOM, 

but rather, went from USAPOA to the Fort Benning transition point via POB. (A.R. 

444.) Accordingly, if the second PEB and USAPOA's revocation of authority to 

discharge plaintiff were invalid due to USAPOA's failure to request plaintiffs case back 

from PERSCOM, as plaintiff contends, 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 of form 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, or contrary to law the ABCMR's related conclusions 

that the second PEB's reconsideration 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 plaintiff reviewed and signed, stated on its face that the PEB's first 

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determination was superseded. 14 (A.R. 100,406.) And while the second PEB's findings 

were not yet final until after the period for plaintiff's filing of an appeal ran, on 

September 17, 2001, the record reflects that if the clerk at the Fort Benning transition 

point had remembered that the authorization for plaintiff's discharge had been revoked, 

she would not have given plaintiff a discharge certificate. (A.R.439.) The ABCMR, 

therefore, was not arbitrary, capricious, or contrary to law to determine that plaintiff's 

September 14,2001 discharge was a legal nullity and that the Army's formal revocation 

of his discharge orders and order that plaintiff return to duty were justified. (A.R. 40); 

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

B. Plaintiff'S Remaining Claims 

Plaintiff also asserts facial and as-applied challenges to the constitutionality of 

Article 3(b) of the UCMJ, 10 U.S.C. § 803(b).15 Plaintiff, however, lacks standing to do 

so. "To have Article III standing, a plaintiff must 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 of Wildlife, 504 U.S. 555, 

560-561 (1992)). Here, plaintiff chose to voluntarily resign from the Army in October 

14 Indeed, paragraph 4-19(p)(I) of Army Regulation 635-40 provides that "[w]hen new 

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 Plaintiff s Article 3(b) challenge is essentially a reassertion of the arguments he presented 

to the Middle District of Georgia in support of his 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 plaintiff adds related as-applied challenges to the 

constitutionality of Articles 32 and 34 of the UCMJ, 10 U.S.C. §§ 832, 834. 

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2002 rather than proceed with his defense to the court-martial proceeding that was then 

pending. Accordingly, even if the Court were to declare Article 3(b) unconstitutional, as 

plaintiff requests, such a declaration would not redress any injury plaintiff alleges 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 

Court to order that his military file be expunged of all materials related to events after 

September 14,2001, because this Court has 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 order that would 

redress plaintiffs alleged injury, he lacks standing to pursue his constitutional claims. 

Finally, the Court finds no reason 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 lacked jurisdiction over 

plaintiff to issue these documents, plaintiff provides no basis on which to find the 

ABCMR's decision arbitrary or capricious. Moreover, in this area courts must give the 

ABCMR "an unusually deferential application of the 'arbitrary and capricious' standard' 

of the APA." Kreis, 866 F.2d at 1514. Here again, the ABCMR's decision contains an 

extensive review of the facts and provides explicit reasons for denying plaintiff s 

requested relief. (A.R 40-41); Kreis, 866 F.2d at 1514-15 (the Army "must give a reason 

16 Nevertheless, even ifl had jurisdiction to 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 United States v. Cole, 24 M.J. 18,22 

(CMA 1987)). 

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that a court can measure, albeit with all due deference, against the' arbitrary and 

capricious' standard of the APA"). The ABCMR neither failed to consider any of 

plaintiff s arguments nor issued a decision as to any of the documents that was arbitrary 

or capricious. 

CONCLUSION 

Thus, for all of the above reasons, the Court GRANTS defendant's Motion for 

Summary Judgment and DENIES plaintiffs Cross-Motion for Summary Judgment. An 

appropriate Order will issue with this Memorandum Opinion. 

~~ United States District Judge 

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