Koroluk v. Fanning, CIVIL ACTION NO. 3:13-cv-00758-JHM

MARK KOROLUK PLAINTIFF v. ERIC FANNING, in his official capacity as SECRETARY,DEPARTMENT OF THE AIR FORCE DEFENDANT

CIVIL ACTION NO. 3:13-cv-00758-JHM

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION

February 10, 2016

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Plaintiff's Motion for Judgment on the Administrative Record [DN 54]. Fully briefed, this matter is ripe for decision. For the following reasons, Plaintiff's Motion is DENIED.

I. BACKGROUND

Plaintiff originally filed his Amended Complaint on May 23, 2014, alleging equal protection claims, substantive and procedural due process claims, and claims under the Administrative Procedures Act (hereinafter "APA") and the Tucker Act. (Pl.'s Am. Compl. [DN 21] at 10-13.) Having exhausted all administrative remedies and having all other claims dismissed in previous Orders [DNs 22, 34], Plaintiff now seeks a judgment on the Administrative Record in regards to his last and only standing claim under the APA. (Pl.'s Mem. Supp. Mot. J. Admin. R. [DN 54-1] at 1.) Plaintiff claims that his disenrollment from the Air Force Reserve Officers' Training Corps (hereinafter "AFROTC") program at the University of Louisville was arbitrary and capricious, in violation of federal and constitutional law. (Pl.'s Am. Compl. [DN 21] at 13.)

On July 25, 2012, Col. Hamilton, acting under his authority as the AFROTC Registrar to make all disenrollment decisions for Detachment 295, disenrolled Plaintiff from the AFROTC program reasoning that Plaintiff "failed to maintain retention standards when he was involved in multiple alcohol related incidents." (Def.'s Resp. [DN 55] at 9.) Plaintiff now contests the basis for the disenrollment decision, asserting that the evidence does not support a finding of multiple alcohol related incidents and that the internal notification and investigatory procedure was improper. (Pl.'s Mem. Supp. Mot. J. Admin. R. [DN 54-1] at 1.)

The first incident at issue occurred on October 30, 2009, during Plaintiff's first semester attending the University of Louisville. He was not yet was not enrolled in the AFROTC program at this time. (Id. at 3.) Plaintiff had previously been enrolled in the AFROTC program at the Rose-Hulman Institute of Technology during the 2008-2009 academic year, but was discharged from the program on June 3, 2009 for failure to meet academic standards. (Id. at 2.) Therefore, at the time of the first incident relevant to the matter at hand, Plaintiff was not a contract cadet in the AFROTC program, but he was actively seeking enrollment. (Id. at 3.)

On the night of October 30, 2009, Plaintiff attended a private party in which several underage AFROTC cadets consumed alcohol. (Id.) Plaintiff, also underage, did not consume any alcohol, yet he did not attempt to stop consumption by others. (Id.; Admin. R. [DN 50] at 277.) Even though he was not a contract cadet in the program, Plaintiff was asked to provide a statement as part of an investigation of the event undertaken by the AFROTC Detachment. (Pl.'s Mem. Supp. Mot. J. Admin. R. [DN 55-1] at 3.) Plaintiff willingly provided a statement regarding his involvement and identified those who had been drinking. (Id.) In his affidavit regarding the events of the evening, Plaintiff stated he did not drink alcohol, apologized "for not doing anything about the situation when it first came to [his] attention," and asserted that he would "make sure to be a preventer in another situation like this if it were to arise, and make sure there is not a next time ever again." (Admin. R. [DN 50] at 277.)

After the incident, Plaintiff was counseled by Captain Stacy R. Swanson, Commandant of Cadets, and by then Lieutenant Colonel Kevin K. Raybine, Detachment 295 Commander. This counseling was documented on Form 16, in which Captain Swanson stated that Plaintiff's actions "violated all of the Air Force core values." (Id. at 210.) She went on to counsel Plaintiff in the following manner:

You did not drink, but remaining in that situation was not the best choice. You are in a unique position, needing our support in order to pursue joining our detachment. This incident brings that support into serious question. You have been very visible and helpful within the detachment, then you are involved in a situation that involves underage drinking. You need to reevaluate your decisions. Because of your actions, you are hereby counseled.

(Id.) This counseling was provided because Plaintiff was seeking reenrollment in the AFROTC program, meaning he was held to the same high standards as cadets. (Def.'s Resp. [DN 55] at 4.) In his affidavit taken several years later in 2012, now Colonel Raybine insisted that "the incident described on 13 Nov 09 AFROTC form did not rise to the level of waiverable behavior according to AFROTC standards. Therefore, [Plaintiff] did not require any kind of waiver for this incident in order to become an Air Force cadet."¹ (Id.) Following this incident, Plaintiff successfully reenrolled in the AFROTC program at the University of Louisville. (Id. at 513-15.)

The second incident occurred on December 18, 2010, after Plaintiff had been reinstated as a non-contract cadet. (Def.'s Resp. [DN 55] at 4.) However, the facts of this incident did not come to light until early 2012. On August 23, 2011, Plaintiff signed a contract with the AFROTC and became a member of the professional officer's course. (Id.) In early 2012, afemale cadet reported that she had suffered a sexual assault and had indicated that another female cadet, Rachel Gregor, had potentially suffered an assault as well. (Id.) In May 2012, Colonel Raybine appointed Captain Kent N. Moore to investigate the sexual assault allegations. (Id.) On May 14, 2012, Captain Moore began emailing Gregor requesting her cooperation with his investigation. (Admin. R. [DN 50] at 368.) He began by asking for information regarding another male cadet, with whom he had heard that she may have had some sort of sexual encounter. (Id.) Captain Moore stated that he had heard that she may have had a similar experience with a second cadet, and he requested that she describe that encounter as well. (Id.) In her response, Gregor detailed the incident with the cadet that Captain Moore originally mentioned, and then revealed that she and Plaintiff had engaged in sexual conduct as well, making the first reference to December 18, 2010. (Id.) Up to this point, the AFROTC Detachment was not aware of any of the circumstances surrounding the evening of December 18, 2010.

In her emails to Captain Moore, Gregor described the evening in detail. She stated:

[Plaintiff] invited [her] to hang out with him and some of his friends at his apartment in Province. At his apartment, he offered me alcohol (neither of us were 21), and I accepted. I had at least 3 to 5 alcoholic drinks and passed out at his apartment. [Plaintiff] took advantage of me sexually while I was under the influence of alcohol. Although [Plaintiff] has not taken advantage of me aside from this occurrence, he has provided alcohol to me at his apartment on many occasions.

(Id. at 367.) Gregor went on to assert in a later email that "without a doubt [she] would not have slept with either [the first male cadet or Plaintiff] sober." (Id. at 363.) She also stated that she had further sexual relations with Plaintiff on three to four other occasions between December 2010 and December 2011. (Id. at 364.) Additionally, she disclosed that Plaintiff had provided her with alcohol on about four or five other occasions, specifically twice during August 2011 andtwice during December 2011. (Id. at 365.) She later confirmed that there were other cadets in Plaintiff's apartment whenever she was there, but refused to give further identifying details in order to protect others from being punished. (Id. at 360.) After several subsequent emails were exchanged, Gregor decided to terminate the conversation, stating: "After careful consideration, I would like to have all written statements I made regarding [Plaintiff] removed from all records." (Id. at 359.)

After receiving incriminating emails from Gregor, on May 17, 2012, Colonel Raybine completed AFROTC Form 10, entitled "Administrative Disenrollment Action Worksheet," beginning the disenrollment process for Plaintiff. (Id. at 373.) The worksheet provides many options so that one may choose a prepopulated reason as to why one is initiating a disenrollment action. (Id.) Colonel Raybine selected the "Other" box, and specifically listed "sexual assault" as the reason. (Id.) Colonel Raybine additionally expressed: "Although I am initiating this action for this reason or reasons, [Plaintiff's] possible disenrollment from AFROTC is not limited to these particular reason or reasons." (Id.) Plaintiff was appointed a military advisor and investigation officer, and he signed this form on May 17, 2012 indicating that he would not be waiving his right to an investigation or his right to submit written materials. (Id.)

During the course of the ensuing investigation, Plaintiff made a statement to Captain Moore regarding December 18, 2010 and his relationship with Gregor. (Id. at 375.) In this statement, Plaintiff made clear "that Rachel Gregor had a couple of beers and he had a couple of beers." (Id.) In regards to later relations with Gregor, Plaintiff stated that "during the Spring 2011 semester and summer, he and Rachel had an on-again-off-again relationship. They had sex on several other occasions and alcohol was involved on a few of the occasions." (Id.)

Upon completing the investigation, Captain Moore turned over his findings to Colonel Raybine, who then made a recommendation to the AFROTC Registrar, Colonel Hamilton. (Def.'s Resp. [DN 55] at 9.) Colonel Raybine completed AFROTC Form 22, entitled "Cadet Personnel Action Request," in regards to Plaintiff and the investigation. (Id.) On July 2, 2012, Colonel Raybine concluded: "After review of the investigation for...