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Bennett v. McHugh

United States District Court, D. Massachusetts

July 10, 2014

DAVID W. BENNETT, Plaintiff,
v.
JOHN M. McHUGH, SECRETARY OF THE ARMY, Defendant.

MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO REMAND

F. DENNIS SAYLOR, IV, District Judge.

This claim arises out of the United States Army's denial of a veteran's petitions for correction of his military records. Plaintiff David Bennett brings claims under the Due Process Clause of the Fifth Amendment and the Administrative Procedure Act, 5 U.S.C. ยง 500 et seq., asserting that the Army Board for Correction of Military Records ("ABCMR") improperly refused to expunge an adverse academic report and an adverse evaluation report from his military record.

Defendant John McHugh, Secretary of the Army, concedes that the ABCMR denied Bennett's applications without considering all of the materials he provided and has moved to remand the case to the agency for reconsideration on that basis. For the reasons set forth below, the motion will be granted.

I. Background

The facts are presented as stated in the amended complaint.

David Bennett was born in Worcester, Massachusetts. After completing high school in 1965, he attended the College of the Holy Cross. He was unsuccessful in two applications for an appointment to the United States Military Academy while in high school and in college. In 1966, he enlisted into the United States Army.

In 1967, after attending the U.S. Army Engineer Officer Training School, Bennett was commissioned as a second lieutenant in the United States Army Corps of Engineers. After completing Airborne School and Ranger School, he was assigned as a platoon leader, company executive officer, and company commander for the 47th Engineer Battalion. He was deployed to Vietnam on November 15, 1968. While in Vietnam, he was promoted to captain, and he saw extensive combat. He was regularly subjected to intense enemy fire, and earned a Silver Star, a Bronze Star with Valor Device, the Combat Infantryman's Badge, and two Purple Hearts. He also received an unfavorable Officer Efficiency Report ("OER") for the period ending in February 28, 1969, which he seeks to expunge from his record on grounds of inaccuracy, lack of specificity, and administrative error.

In April 1971, Bennett was evacuated from Vietnam to the United States due to serious injuries, for which he received his second Purple Heart. Because of his injuries, which included loss of sight in his right eye, he met the criteria to be found "unfit" for retention on active duty. However, he implored his surgeons to find him "fit, " and was so found in October 1971. After that finding, he was discharged from the hospital and returned to active duty.

The Army assigned him as a student officer in the Officer Undergraduate Degree Completion Program at the University of Massachusetts ("UMass") from January 1972 to January 1974. However, while at UMass, he lost the ability to concentrate and complete his coursework. He missed classes and eventually found it difficult to get out of bed. By midsemester, he made a request to be relieved of his academic assignment, and to be returned to an operational unit. This request was initially denied, but after he displayed continuing poor academic performance in the spring, he was reassigned.

In August 1972, Bennett joined the 1st Special Forces Group in Okinawa, Japan. On December 18, 1972, he received an adverse academic report a result of his failures at UMass, and was selected for involuntary release from active duty in 1973 as part of a reduction in force. The only OER that he received between the time he left UMass and the time he was released from active duty recommended that he be promoted ahead of his contemporaries. He was honorably discharged on December 3, 1973.

In 2006, a private therapist determined that Bennett's academic failure was attributable to post-traumatic stress disorder ("PTSD"). The therapist concluded that combat losses suffered by his previous unit fewer than thirty days after his departure had triggered a major depression. On April 27, 2007, a Department of Veterans Affairs psychologist examined him and diagnosed severe PTSD and major depressive disorder secondary to PTSD. The psychologist also attributed his academic failure to PTSD. On October 31, 2007, a different psychologist conducted a neuro/pyschological examination and concluded that his psychological and psychiatric symptoms were likely related to multiple traumatic brain injuries that occurred during his service in Vietnam.

On July 31, 2007, Bennett filed a request with the ABCMR to make three corrections to his military record: (1) to expunge the adverse OER; (2) to expunge the adverse academic report; and (3) to change his honorable discharge to a retirement due to physical disability, effective retroactively from December 3, 1973. The ABCMR denied that request on February 12, 2008. On February 13, 2008, Bennett sought reconsideration of the ABCMR's decision. He submitted additional materials for review on June 18, 2008. On June 19, 2008, on reconsideration the ABCMR again denied Bennett relief. On June 27, 2008, Bennett again requested reconsideration, asserting that the ABCMR did not consider the additional materials that he had submitted in his request for reconsideration. On July 24, 2008, he provided additional materials in support of his original request, and requested another review. The ABCMR, acting according to its controlling regulations, returned that request without action.

On February 6, 2014, Bennett filed a complaint with this Court seeking judicial review of the decisions of the ABCMR under the Administrative Procedures Act, alleging that the ABCMR's decisions were arbitrary and capricious and an abuse of discretion. On May 21, 2014, McHugh filed a motion ...


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