Tennekoon v. Fanning, Civil Action No. 15-0148 (ABJ)

156 F.Supp.3d 208

Eraj V. Tennekoon, Plaintiff,

v.Eric K. Fanning, Acting Secretary of the Army¹ , Defendant.

Civil Action No. 15-0148 (ABJ)

United States District Court, District of Columbia.

Signed January 15, 2016

David Patrick Sheldon, Law Offices of David P. Sheldon, P.L.L.C., Washington, DC, for Plaintiff.

Derrick Wayne Grace, Wayne Holden Williams, U.S. Attorney's Office for The District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge

Plaintiff Eraj V. Tennekoon brought this action under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. , against Eric K. Fanning, the Acting Secretary of the Army, in his official capacity, alleging that the Army arbitrarily and capriciously denied plaintiff's request to remove derogatory information from his personnel records. Compl. [Dkt. # 1] ¶ 58.

Plaintiff is an active-duty U.S. Army Captain who served two tours in Iraq. Id . ¶¶ 18–20. In August 2008, plaintiff was on leave from Iraq and residing on a military base in New York. Id . ¶ 21. Shortly after his return, he was arrested by military police when his wife reported an incident of domestic violence, and the Army ultimately charged him by court martial. Id. ¶¶ 21, 28. In an October 2, 2008 Officer Evaluation Report (OER), while the criminal case was pending, plaintiff's supervisors recommended that he not be promoted because his “off-duty behavior severely impacted his ability to perform his duties ....” Compl. ¶¶ 24–25; AR53–54² . Plaintiff was subsequently acquitted of those charges, Compl. ¶ 29, and he brought this action after multiple unsuccessful efforts to persuade the Army to correct his military record and remove the 2008 OER. Id. ¶¶ 37, 43, 48. The gravamen of his complaint is that the Army's regulations prohibit making reference to unproven derogatory information such as charges that have not yet been adjudicated.

The parties have filed cross-motions for summary judgment. See Def.'s Mot. for Summ. J. [Dkt. # 7] (“Def.'s Mot.”); Def.'s Mem. in Supp. of Mot. for Summ. J. [Dkt. # 7-1] (“Def.'s Mem.”); Pl.'s Cross-Mot. for Summ. J. & Opp. to Mot. for Summ. J. [Dkt. # 10] (“Pl.'s Cross-Mot.”); Pl.'s Mem. of P. & A. in Supp. of Pl.'s Cross-Mot. for Summ. J. & Opp. to Def.'s Mot. for Summ. J. [Dkt. # 10-1] (“Pl.'s Cross-Mem.”). The Court will grant plaintiff's motion in part and deny it in part, and grant defendant's motion in part and deny it in part, because it finds that the Army Board for Correction of Military Records (“ABCMR” or the “Board”) failed to respond directly to the legal argument at the heart of plaintiff's request for reconsideration before the Board, which does not appear to be frivolous and could affect the Board's ultimate determination. The Court will therefore remand this matter to the agency for further action.

BACKGROUND

Plaintiff currently serves as a Captain in the United States Army, and he is stationed in Grafenwoehr, Germany. Compl. ¶ 6. He was originally appointed as a commissioned officer at the rank of second lieutenant in December 2004. Id. ¶ 17. He served in Iraq from March to July, 2006, and again from September 2007 to August 2008. Id. ¶¶ 18–19; AR140. In February 2008, plaintiff was promoted to Captain. Compl. ¶ 20. Throughout his career in the Army, plaintiff received exceptional Officer Evaluation Reports and regular career advancements. See AR45–46 (2006 OER describing plaintiff as an “outstanding platoon leader” with “unlimited potential for advancement”); AR48 (2007 review describing him as “the best platoon leader I currently rate and in the top 10% of officers ... in 12 years of service”); AR52 (2008 review noting that plaintiff should be “[p]romote[d] ahead of peers,” and describing him as “the best Executive Officer in the Battalion.”).

For his “exceptionally meritorious service” in Iraq, plaintiff received a Bronze Star in June 2008. AR65. But there was a significant change in the nature of the evaluation plaintiff received after he returned from Iraq to the military base in Fort Drum, New York in August 2008. Compl. ¶¶ 21, 25–26. On August 4, 2008, the Military Police were called to plaintiff's home to respond to a report of an alleged domestic disturbance. Id. ¶ 21. Plaintiff was arrested, placed into pretrial confinement, and eventually charged by court martial for the events related to the alleged altercation. Id. ¶¶ 22, 28; AR41–42. The Army alleged that plaintiff “unlawfully grab[bed] [his wife] on the neck and arm with his hands” in the presence of their child, and that plaintiff “criminally possess[ed]” a firearm. AR41–42; see Compl. ¶ 28. In light of plaintiff's arrest, his Bronze Star was revoked. AR66.

On October 2, 2008, plaintiff received a Relief for Cause Officer Evaluation Report³ for the period of January 26, 2008 through August 4, 2008. AR53–54. The evaluator commended plaintiff's “solid performance” in Iraq, but noted that “[d]espite CPT Tennekoon's strong job performance, he failed to meet the standard we expect of officers by being involved in a domestic disturbance dispute and possessing unregistered firearms.” AR54. The report continued, under the section titled “Comment on Potential for Promotion,” “Captain Tennekoon has no potential for future service in our Army and absolutely should not be promoted to Major. He fails to meet the standards we expect of all officers in the United States Army.” Id. The Senior Rater echoed praise for plaintiff's job performance, but concluded:

Unfortunately while on Environmental Leave, CPT Tennekoon's off duty behavior severely impacted his ability to perform his duties as the Battalion S4 and he could not return to Iraq and rejoin the unit. In the course of a domestic dispute, he demonstrated extremely poor judgment and conduct unbecoming for a US Army officer. His behavior has cost him the respect of his subordinates, peers, and supervisors. As a result, I relieved him of his duties. At this time, he should not be promoted.

Id.

One month later, on November 13, 2009, plaintiff appeared before the court martial and was acquitted after trial on all charges. AR41.

On August 23, 2010, Plaintiff appealed his October 2008 Evaluation Report to the Officer Special Review Board (OSRB).⁴ He argued that the report was substantively inaccurate when it was issued because it referenced the then-pending allegations, and that after the acquittal, the continued inclusion of the OER in his military record was unjust. See AR122–33. The OSRB denied plaintiff's appeal and explained:

An internal legal opinion was obtained opining that while the court-martial proved beyond a reasonable doubt that the appellant was not guilty of the specific charges therein, the general comments regarding the appellant's involvement in a domestic dispute which involved poor judgment and conduct unbecoming an officer, were not undermined by the court-martial results and represented a fair assessment of the situation leading to the basis of the evaluation report.

AR124. Based on that recitation of the substance of the legal opinion, the OSRB concluded that the “overall merits of this case do not warrant the relief requested.” AR121. That decision was affirmed by the President of the OSRB on April 12, 2011. AR119.

On July 19, 2011, plaintiff filed an application pursuant to 10 U.S.C. § 1552 with the Army Board for Correction of Military Records, and again requested removal of the 2008 OER from his file on the basis of “substantive inaccuracy.” AR91. He complained that the OER was based “solely on the allegations of which [plaintiff] was acquitted.”⁵ Id . On November 3, 2011, the Board informed plaintiff that it had denied his application. AR77–78. It detailed the history of the matter and the evidence presented, see AR79–84, and stated:

Counsel contends the OER is unjust, contains negative markings and comments based entirely on allegations, and should be removed because the applicant was acquitted at court-martial. However, there is evidence which shows the applicant's unbecoming conduct during a domestic dispute led to him not being able to perform his duties.

Although the applicant was acquitted of charges, the fact remains that at the time the report was rendered, his senior rater objectively opined he exhibited extremely poor judgment during a domestic dispute that led to charges being preferred.

AR83.

On November 5, 2012, plaintiff requested reconsideration of the Board's decision. Compl. ¶ 43; AR18–39. This time, he submitted a twenty-two page memorandum that laid out specific legal challenges to the Board's decision based on Army Regulations, in particular, Army Regulation 623–3 § 3–23. See AR18–39. In addition, plaintiff included letters from the two rating officials who prepared the 2008 OER. AR43–44. In practically identical letters, the rating officials both indicated that “[a]t the time [the official] wrote the OER, all data reflected in the OER was accurate.” AR43, 44. The letters go on to say, though, that each rating official “would not have included the negative comments on [plaintiff's] OER had [the official] known he was going to be acquitted at court-martial of the underlying misconduct .... Had the acquittal come before the rating period closed, [the official] would not have referred to the underlying misconduct.” AR43, 44.⁶

On August 1, 2013, the Board denied plaintiff's request for reconsideration. AR5. With respect to the letters from the rating officials, it observed:

The senior rater still states that at the time the OER was written all the data was accurate .... Both the rater and senior rater now support the applicant's request to remove the subject OER from his [personnel file]. They both clearly state that had they known the outcome of the court-martial they would not have mentioned the underlying misconduct that resulted in the applicant's relief for cause. However, neither rating official contends that the applicant would not still have been relieved for

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