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Bennett v. Murphy

United States District Court, D. Massachusetts

February 26, 2016

DAVID W. BENNETT, Plaintiff,
v.
PATRICK J. MURPHY, Acting Secretary of the Army, [1] Defendant.

MEMORANDUM AND ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

F. Dennis Saylor IV United States District Judge

This matter arises out of the United States Army’s denial of a veteran’s petitions for correction of his military records. Pro se plaintiff David Bennett is a Vietnam veteran and former Army captain who seeks to expunge certain adverse reports from his record and change his honorable discharge to a medical retirement.

Bennett has asserted one claim under the Due Process Clause of the Fifth Amendment and six claims under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(a). As to his APA claims, he appears to assert two theories of relief. First, he contends that the Army Board for Correction of Military Records (“ABCMR”) improperly refused to expunge an adverse academic evaluation report (“AER”) and an adverse officer evaluation report (“OER”) from his military record. Second, he contends that the ABCMR’s decision not to change his honorable discharge to a medical retirement for post-traumatic stress disorder (“PTSD”) and mild traumatic brain injury (“MTBI”) was arbitrary and capricious. Bennett previously waived his claim for monetary damages in the form of retirement back pay and allowances; accordingly, he seeks only injunctive and declaratory relief. As to the due-process claim, the complaint alleges that the ABCMR violated Bennett’s procedural due-process rights by, among other things, making false statements in support of its decisions and ignoring evidence.

Defendant Patrick J. Murphy, Acting Secretary of the Army, has moved for summary judgment on all claims. He asserts that the ABCMR’s decision not to change Bennett’s honorable discharge to a medical retirement was based on substantial evidence in the administrative record and was not arbitrary and capricious. He further contends that Bennett’s claims seeking to expunge his adverse AER and OER should be denied as moot because the ABCMR has already ordered those documents removed from his military record.

It is not hyperbole to call David Bennett an American hero. After his first semester of college, he enlisted in the United States Army at the age of nineteen. In 1968, he was deployed to Vietnam, where he saw extensive combat. He was promoted to captain and earned a Silver Star and two Purple Hearts, among other accolades. In 1971, he suffered serious combat injuries and was evacuated back to the United States, where he was hospitalized for six months. After imploring his surgeons to declare him “fit” for retention on active duty, Bennett was assigned to a student-officer program at the University of Massachusetts. Bennett was, by his own blunt admission, unsuccessful academically at UMass, and he requested reassignment to an operational unit. In 1972, sixteen months after he was evacuated from Vietnam, Bennett joined the 1st Special Forces Group in Okinawa, Japan. He was honorably discharged in 1973 due to a reduction in force. After his discharge, Bennett served with distinction in the Army Reserves, receiving exemplary reviews. Although he has since suffered from PTSD and been awarded a rating of 100 percent disabled by the Department of Veterans Affairs (“VA”), Bennett, by all accounts, has had a successful post-military career in the private sector.

This case, unfortunately for Bennett, is not about his illustrious service. Rather, as to his discharge, it presents a narrow issue: whether he suffered from a disability that made him unfit for service at the time of his discharge in 1973. The ABCMR, after several reviews of the administrative record, concluded that Bennett was not disabled at that time, principally based on his productivity as a member of the Special Forces before his discharge and as a member of the Army Reserves after his discharge. Not lost on the Court is the sad irony that Bennett’s continued dedication to service after being wounded in combat works against him in this case. But unless the Court can conclude that the ABCMR’s decision was arbitrary, capricious, or an abuse of discretion, the defendant is entitled to summary judgment on Bennett’s claim to be granted a retroactive disability retirement. Because the Court cannot reach such a conclusion, defendant’s motion for summary judgment will be granted as to that claim. Defendant’s motion will also be granted as to Bennett’s procedural due-process claim.

However, as to Bennett’s claim that the adverse AER and OER should be expunged from his military record, defendant’s motion for summary judgment will be denied. Defendant’s argument is essentially that Bennett’s claims are moot because the ABCMR has already ordered the adverse reports to be removed from his record. That argument, however, is not entirely accurate. The ABCMR’s acknowledgement that the AER and OER should be removed because they are either lost, incomplete, or of questionable legitimacy, does not moot Bennett’s claims; instead, it appears to concede them. Bennett, however, did not move for summary judgment. Accordingly, defendant will be ordered to show cause within 21 days why summary judgment should not be entered for Bennett on those claims pursuant to Fed.R.Civ.P. 56(f). Otherwise, summary judgment will enter, and the ABCMR will be ordered to expunge from Bennett’s military record his adverse AER, adverse OER, and certain related documents described below.[2]

I. Background

The facts are presented as stated in the third amended complaint (“TAC”) and the administrative record (“A.R.”).

A. Regulatory Background

1. Army Disability Retirement

Military disability retirement entitles former service members to receive increased retirement pay and other enhanced benefits relative to standard retirement or honorable discharges before retirement. See Smalls v. United States, 471 F.3d 186, 190 (D.C. Cir. 2006). “Qualifying for disability retirement, however, is no small task” because “military regulations establish a complex web of procedures for obtaining disability benefits after leaving active service.” Fulbright v. McHugh, 67 F.Supp.3d 81, 85 (D.D.C. 2014).

Obtaining disability retirement from the Army begins with an examination of the soldier by an Army medical examiner. See Army Reg. 635-40 ¶ 4-9. The medical examiner diagnoses the soldier’s medical conditions and makes a determination as to whether he is medically qualified to perform his particular duties. Id. If the medical examiner finds the soldier fit for duty, then he is not eligible for disability retirement. If the medical examiner finds the soldier unfit for duty-or if the service member suffers from certain enumerated conditions-the Army will convene a Medical Evaluation Board (“MEB”) to review the medical examiner’s diagnosis and fitness determination. Id. ¶¶ 4-9, 10; see also Army Reg. 40-501 Ch. 3. If the MEB concludes that the soldier is unfit for duty due to his diagnosed conditions, the Army may convene yet another board-a Physical Evaluation Board (“PEB”)-to review the MEB’s findings. Army Reg. 635-40 ¶ 4-13. The PEB conducts a more thorough investigation into the nature and permanency of the soldier’s condition and makes independent findings as to whether the service member is unfit for duty and qualifies for disability retirement. Id. ¶¶ 4-17, 19. If the PEB determines that a soldier qualifies for disability retirement, it assigns a disability percentage rating based on the Department of Veterans Affairs’ Schedule for Rating Disabilities (“VASRD”). Id. ¶¶ 3-5, 4-19i.

The assigned disability rating affects the level of benefits a disabled soldier will receive, and the rating is permanent because it is assessed at the time of discharge. See Id. PEB disability retirement recommendations are reviewed by the Army Physical Disability Agency (“APDA”), within the Army Human Resources Command. Id. ¶ 4-24. Only upon acceptance of a PEB recommendation by the APDA will a soldier become eligible to receive disability retirement benefits. The VA and Army have distinct systems for awarding disability benefits, neither of which is binding on the other. See, e.g., Rudo v. Geren, 818 F.Supp.2d 17, 23 n.4 (D.D.C. 2011).

Among several avenues of appeal open to a soldier throughout this extensive process, he may request that the ABCMR review an adverse disability retirement determination. Army Reg. 635-40 ¶ 2-12. The ABCMR’s review is somewhat limited. It may review the determination only for “error or injustice, ” and its inquiry is focused entirely on whether the soldier had a disability at the time he was discharged and whether that disability made him unfit for service; symptoms that the service member may suffer from later are not considered. Id. ¶ 2-12, 3-1.

2. Army Officer Evaluation Reports

An OER is a form used by the Army to evaluate the performance and potential of soldiers. See Army Reg. 623-105 ¶ 1-7(a). As part of the Army’s personnel system, it helps identify members who are best qualified for promotion and assignment to positions of higher responsibility, as well as soldiers who should be kept on active duty, retained in grade, or discharged. Id. ¶ 1-8(a). At least two of the soldier’s supervisors must prepare the OER: the “rater, ” who is the officer’s direct supervisor, and the “senior rater, ” who is higher in the chain of command. Id. ¶¶ 2-10, 2-14. The rater and senior rater evaluate the officer on the OER by checking “yes” or “no” in boxes for certain attributes, skills, and actions; rating performance and potential for promotion on a continuum; and writing narrative comments. Id. ¶¶ 3-19, 3-20, 3-22.

The Officer Special Review Board (“OSRB”) is the military board to which appeals of OERs are submitted. Army Reg. 623-3 ¶ 6-7(i). Upon further petition by a soldier to amend or remove an unfavorable OER, the ABCMR, a civilian board operating under the authority of the Secretary of the Army, “may correct any military record of the [Army] when the Secretary considers it necessary to correct an error or remove an injustice.” 10 U.S.C. § 1552(a); see also Army Reg. 623-105 ¶¶ 6-8(f), 6-10(a).

B. Factual Background

David Bennett was born in Worcester, Massachusetts. (TAC ¶ 5). After completing high school in 1965, he attended the College of the Holy Cross. (TAC ¶ 6). He was unsuccessful in two applications for an appointment to the United States Military Academy while in high school and in college. (TAC ¶¶ 8-9). In 1966, after his first semester of college, he enlisted in the United States Army. (TAC ¶¶ 9-11).

After attending the U.S. Army Engineer Officer Training School, Bennett was commissioned in 1967 as a second lieutenant in the United States Army Corps of Engineers. (TAC ¶¶ 13-14). 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. (TAC ¶¶ 15-16). He was deployed to Vietnam on November 15, 1968. (TAC ¶ 17). While in Vietnam, he was promoted to captain. He saw extensive combat and was regularly subjected to intense enemy fire. (TAC ¶¶ 18-21). He earned a Silver Star, a Bronze Star with Valor Device, the Combat Infantryman’s Badge, and two Purple Hearts. (TAC ¶¶ 21-23). He also received an adverse OER for the period ending February 28, 1969, which he seeks to expunge from his record on grounds of inaccuracy, lack of specificity, undue delay, and administrative error. (TAC ¶¶ 53-72).

In April 1971, Bennett was evacuated from Vietnam to the United States due to serious injuries, for which he received his second Purple Heart. (TAC ¶ 24). He was a patient for six months at the Boston Naval Hospital in Chelsea, Massachussetts. (TAC ¶ 25). Because of his injuries, which included loss of sight in his right eye, Bennett met the criteria to be found “unfit” for retention on active duty. (TAC ¶ 26). However, he implored his surgeons to find him “fit, ” and was so found in October 1971. (TAC ¶ 27). After that finding, he was discharged from the hospital and returned to active duty. (TAC ¶ 28).

The Army assigned Bennett as a student officer in the Officer Undergraduate Degree Completion Program at the University of Massachusetts (“UMass”) in January 1972. (TAC ¶ 29). However, while at UMass, he lost the ability to concentrate and complete his coursework. (TAC ¶¶ 30-31). He missed classes because he found it difficult to get out of bed, and ultimately failed most of his classes. (TAC ¶¶ 30-31). After requesting a return to an operational unit in the middle of his first semester and repeating that request the following semester, Bennett was reassigned. (TAC ¶¶ 33-34).

In August 1972, Bennett joined the 1st Special Forces Group in Okinawa, Japan. (TAC ¶ 35). On December 18, 1972, he received an adverse AER a result of his academic failures at UMass. (TAC ¶ 36). The complaint alleges that the Army selected Bennett for involuntary release from active duty in 1973 as part of a reduction in force because of his AER. (TAC ¶ 37). However, a release-from-active-duty letter that he received from the Secretary of the Army, dated May 31, 1973, stated that

[s]election for release from active duty is meant in no way to reflect unfavorably upon performance of your duty. You have served faithfully and well during a difficult and demanding time in our nation’s history. The necessity to release you is dictated solely by the needs of the service and is sincerely regretted.

(A.R. 493-94). The only OER that Bennett received between the time that he left UMass and the time that he was released from active duty was favorable and recommended ...


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