Washington v. Donley
Filing
37
MEMORANDUM OPINION re 26 motion for summary judgment; 30 cross motion for summary judgment. Signed by Judge Leonard P. Stark on 7/29/11. (ntl)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MELVERT WASHINGTON, JR.,
Plaintiff,
v.
08-493-LPS
Hon. MICHAEL B. DONLEY,
SECRETAR Y OF THE UNITED
STATES AIR FORCE,
Defendant.
MEMORANDUM OPINION
Gary D. Berg, Thomas J. Reed, and Kenneth T. Kristl, Widener University School of Law
Veterans Law Clinic, Wilmington, Delaware.
Attorneys for Plaintiff.
Charles M. Oberly, III, Shannon T. Hanson, and Lauren M. McEvoy, United States Attorney's
Office, Wilmington Delaware. Captain Joseph A. Smiga, AFLOAIJACL, Arlington, Virginia.
Attorneys for Defendant.
July 29, 2011
Wilmington, Delaware
I
I
{t-t/K
STARK, U.S. District Judge:
Presently pending before the Court are cross motions for summary judgment filed by
Plaintiff Melvert Washington, Jr. ("Washington" or "Plaintiff') and Defendant Hon. Michael B.
Donley, Secretary ofthe United States Air Force ("Secretary" or "Defendant"). (D. I. 26, 30)
For the reasons set forth below, the Court will (1) deny Plaintiffs motion for summary judgment
and (2) grant Defendant's motion for summary judgment.
BACKGROUND 1
This case arises out of a controversy spanning nearly three decades. Plaintiff served in
the U.S. Air Force from May 25, 1973 until his discharge on or about July 15, 1984. (D.1. 27 at
6)2 He was stationed at RAF Alconbury in the United Kingdom and was a member of the 10th
Combat Support Group, 436th Air Base group, 10th Tactical Reconnaissance Wing. (ld at 8)
After being involved in a motor vehicle accident in which a friend was killed, Plaintiff began to
suffer from anxiety and depression, and he was warned by his superiors of his sub-par
performance of his duties. (ld at 11) After complaining to the Inspector General of the Air
Force regarding his unit's poor morale and leadership, Plaintiff was reassigned to a new position
within his unit, and his Commanding Officer initiated an administrative separation for
unsuitability against him. (ld at 12) Captain William J. Faber was appointed to represent
lThe facts presented are based on the parties' summary judgment filings and a review of the
record created by the parties. Where there are disputes of fact, all reasonable inferences are
drawn in the non-moving party's favor. As is evident from the Court's ruling on the motions, the
Court does not find any genuine issues of material fact.
2Plaintiffallegeshe was discharged on July 15, 1984 and on September 11,1981. (D.L1 ~~8,
12) Defendant contends Plaintiffs discharge became final on February 15, 1984. (D.L 4 ~ 12)
For purposes of evaluating the pending motions, it is immaterial which of these three dates is
accurate.
1
Plaintiff in connection with the administrative separation proceeding. (Id.)
On January 10, 1983, while the administrative separation investigation was ongoing,
Plaintiff was charged with two counts of violating article 134 of the Uniform Code of Military
Justice ("UCMJ"). (Id. at 13) Specifically, Plaintiff was charged with wrongful use of a
controlled substance (marijuana) and wrongful solicitation of marijuana from a junior enlisted
member. (Id.)
On January 25, 1983, a special court-martial was convened and Plaintiff was tried on the
use and solicitation charges. (Id.) Captain Richard C. Ourand was appointed as defense counsel.
(Id. at 13-14) Although Plaintiff evidently provided Captain Ourand with a list of character
references, Captain Ourand did not interview any of the individuals on that list. (Id. at 14) It
appears that Captain Ourand failed to do so in part because the presiding Military Judge told
Captain Ourand that character evidence would be inadmissible at the court-martial. (Id. at
121-22) Captain Ourand also failed to file a motion for a bill of particulars or present an alibi
defense for Plaintiff. (Id. at 15)
At the court-martial, the prosecution relied on the testimony of three witnesses, each of
whom were cross-examined by defense counsel. (Id. at 62-98) All three witnesses testified that
Plaintiff either possessed marijuana or that he attempted to solicit marijuana from Amn. Ivan E.
Wheeler III, his subordinate. (Id. at 66-94) Plaintiff was acquitted of the possession of
marijuana charge and convicted on the solicitation charge. (Id. at 142) He was immediately
sentenced to a Bad Conduct Discharge ("BCD") and reduction in rank from E-5 to E-l. (Id. at
153)
There followed a clemency period. Several events pertinent to the pending motions
2
occurred during this time between Plaintiffs sentencing and when his request for clemency was
resolved. First, Captain Ourand was removed from Plaintiffs case. (D.I. 28 at 519-20,527,531)
New counsel, less familiar with Plaintiffs case, was appointed. (D.I. 27 at 220) Second, the
prosecution provided to Plaintiff s defense team evidence of a urinalysis test, which evidently
found Plaintiff to be negative for the presence of marijuana in the time frame when he was
allegedly soliciting marijuana from his subordinate. Plaintiff did not have this evidence during
his trial or sentencing.
On March 7, 1983, the Convening Authority denied Plaintiffs request for clemency and
approved his sentence. (/d. at 192-93) On July 27, 1983, the U.S. Air Force Court of Military
Review ("USAFCMR") affirmed this ruling. (Id. at 220-21) Plaintiff did not appeal the ruling
of the USAFCMR. (D.I. 28 at 401)
Nearly twenty-two years later, on July 6, 2005, Plaintiff filed a petition for a writ of error
coram nobis 3 with the U.S. Air Force Court of Criminal Appeals ("USAFCCA") alleging that he
had been unconstitutionally convicted during his court-martial due to ineffective assistance of
counsel. (ld. at 335) Plaintiff argued that Captain Ourand's failure to investigate or call at trial
character witnesses, file a bill of particulars, or prepare an alibi defense deprived him of his Sixth
Amendment right to effective counsel, as well as his Fifth Amendment right to due process of
law. (ld. at 321-27) The USAFCCA denied Plaintiffs petition on August 15,2005, although
(for unexplained reasons) Plaintiff did not receive notice of this adverse decision until December
3"The writ of coram nobis is an ancient common-law remedy designed to correct errors of fact."
us. v. Denedo, 129 S.Ct. 2213, 2220 (2009) (internal quotation marks omitted). The Supreme
Court has been "careful" to "limit the availability of the writ to 'extraordinary' cases presenting
circumstances compelling its use 'to achieve justice.'" Id. (quoting Us. v. Morgan, 346 U.S.
502,511 (1954)).
3
8,2006. (/d. at 335-36; D.1. 1 at ~~ 46,48)
Thereafter, on December 26, 2006, Plaintiff filed an appeal and writ petition with the
u.s. Court of Appeals for the Armed Forces ("USCAAF").
(D.!. 28 at 390) On February 22,
2007, the USCAAF declined to hear Plaintiffs writ petition. (/d. at 389) On May 14,2007, the
u.s. Supreme Court denied Plaintiffs petition for a writ of certiorari.
(Id. at 399)
Subsequently, on August 20, 2007, Plaintiff filed an application with the Air Force Board
for Correction of Military Records ("AFBCMR" or "Board"), pursuant to 10 U .S.C. § 1552,
seeking that his military records be changed to reflect an honorable discharge rather than a BCD.
(/d. at 306) In this application, Plaintiff once again contended that his conviction was
unconstitutional due to ineffective assistance of counsel. (/d. at 407-21) The AFBCMR denied
Plaintiffs application on April 24, 2008. (D.!. 27 at 1)
On August 7, 2008, Plaintiff instituted this judicial action by filing a complaint against
Defendant pursuant to 5 U.S.c. § 552a ("Privacy Act"), 5 U.S.c. § 701 et seq. ("Administrative
Procedures Act" or "APA"), 28 U.S.C.§§ 2201-2202 ("Declaratory Judgment Act" or "DJA"), 10
U.S.C. 1552, and the Fifth Amendment to the Constitution of the United States. (D.I. 1)
Plaintiff seeks judicial review of the decision of the AFBCMR denying his request to amend his
military record to reflect an honorable discharge instead of a BCD. (/d.)
The complaint consists of three counts. Count I arises under the AP A and contends that
the Board acted arbitrarily and capriciously in denying Plaintiff s request to amend his record.
(Id. at ~~ 57-58) In Count II, Plaintiff seeks a declaratory judgment that the Board's decision
against him was unlawful and not supported by the evidence. (Id. at ~~ 59-60) Finally, in Count
III, Plaintiff asserts a claim under the Privacy Act, alleging that the Board's decision not to
4
amend his record led to a failure to maintain that record with the accuracy, relevance, timeliness,
and completeness required by statute. (Id at ~~ 61-68)
On November 24,2008, during the pendency of the instant litigation, Plaintiff once again
petitioned the Board to revise his military record. (D.!. 28 at 506; D.1. 26 at 3) Armed with
newly discovered evidence - about the existence of the negative urinalysis test and the
circumstances under which Captain Ourand's representation of Plaintiff was terminated by
superiors (D.!. 28 at 506-08; D.!. 26 at 10)
Plaintiff asked the Board to reconsider its previous
denial of his requested relief. (D.!. 28 at 506-08) Consequently, both parties to this action
sought a stay of the instant proceedings until the AFBCMR completed its review ofPlaintifrs
second petition, which the Court granted on December 23,2008. (D.1. 12, 14) On May 18,
2010, Plaintiff s application for a change of military records was again denied by the Board.
(D.I. 16)
The parties then filed and briefed their cross-motions for summary judgment. (D.!.
25-32) The Court heard oral argument on the motions on June 30, 2011. (D.!. 37) (hereinafter,
"Tr.")
LEGAL STANDARDS
"The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56 (a). The moving party bears the burden of demonstrating the absence of a genuine
issue of material fact. Matsushita Elec. Indue. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.
10 (1986). A party asserting that a fact cannot be - or, alternatively, is
genuinely disputed must
be supported either by citing to "particular parts of materials in the record, including depositions,
5
documents, electronically stored information, affidavits or declarations, stipulations (including
those made for the purposes of the motions only), admissions, interrogatory answers, or other
materials," or by "showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact."
Fed. R. Civ. P. 56(c)(1)(A) & (B). If the moving party has carried its burden, the nonmovant
must then "come forward with specific facts showing that there is a genuine issue for trial."
Matsushita, 475 U.S. at 587 (internal quotation marks omitted). The Court will "draw all
reasonable inferences in favor of the nonmoving party, and it may not make credibility
determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150 (2000).
To defeat a motion for summary judgment, the non-moving party must "do more than
simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475
U.S. at 586-87; see also Podobnik v. Us. Postal Service, 409 F. 3d 584, 594 (3d Cir. 2005)
(stating party opposing summary judgment "must present more than just bare assertions,
conclusory allegations or suspicions to show the existence of a genuine issue") (internal
quotation marks omitted). However, the "mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for summary
judgment;" a factual dispute is genuine only where "the evidence is such that a reasonable jury
could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986). "If the evidence is merely colorable, or is not significantly probative, summary
judgment may be granted." Id. at 249-50 (internal citations omitted); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986) (stating entry of summary judgment is mandated "against a
6
party who failed to make a showing sufficient to establish the existence of an element essential to
that party's case, and on which that party will bear the burden of proof at trial").
DISCUSSION
I.
APA Claim
In Count I, Plaintiff contends that the Board violated the AP A in that its refusal to
provide the reliefhe sought - the change in discharge status from Bad Conduct to honorable
was arbitrary and capricious. The Court concludes that the Board's decision was not arbitrary
and capricious. Additionally, assuming without deciding that the Court can reach the merits of
Plaintiff s constitutional claims, the Court concludes those claims lack merit.
A.
The Board Did Not Act In An Arbitrary Or Capricious Manner
Pursuant to 10 U.S.C. § 1552, the Secretary of the Air Force has the authority to correct
any military record of the Air Force through the AFBCMR when "the Secretary considers it
necessary to correct an error or remove an injustice." The Board does not have the authority to
overrule the decisions of courts-martial; it does, however, have the power to grant clemency with
regard to the sentence imposed. See 10 U.S.C. § 1552(f); D.1. 32 at 4.
By Count I of his Complaint, Plaintiff seeks review of the Board's denial of his request to
"correct" his military records - by changing his discharge from one due to Bad Conduct
under
the AP A. A person suffering a legal wrong due to the actions of a government agency such as
the AFBCMR is "entitled to judicial review thereof' under the AP A. 5 U.S.C. § 702. Under the
APA, a district court may set aside agency determinations that are found to be "arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706.
The court, however, is "not empowered to substitute its judgment for that of the agency."
7
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971). Plaintiff bears the burden
of demonstrating by "cogent and clearly convincing evidence that the correction board acted
arbitrarily, capriciously, contrary to law, or that its determination was unsupported by substantial
evidence." Dodson v.
u.s., 988 F.2d 1199, 1204-05 (Fed. Cir. 1993).
A decision is deemed to
be arbitrary or capricious when the decision maker failed "to consider an important aspect of the
problem, offered an explanation for its decision that runs counter to the evidence before the
agency, or is so implausible that it could not be ascribed to a difference in view or the product of
agency expertise." See Motor Vehicle Mfrs. Ass 'n of us., Inc. v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983).
The standard of review is particularly narrow when dealing with the actions of the armed
forces and their agencies. As Plaintiff acknowledges, "courts must show unusual deference to
the decisions of military service boards and affirm a board decision ifit is plausible." (D.I. 30 at
6) (citing Greenberg v. England, 2005 U.S. Dist. LEXIS 22688 (D. Del. Oct. 6, 2005)); see also
Tr. at 17 ("[W]e have no basic disagreement with the general statements of law regarding our
burden of proof. We have to come to this Court showing that the decision of the Board ... was
arbitrary and unreasonable."); Orloffv. Willoughby, 345 U.S. 83, 94 (1953) ("Orderly
government requires that the judiciary be as scrupulous not to interfere with legitimate Army
matters as the Army must be scrupulous not to intervene in judicial matters."). Moreover, there
is a presumption that "administrators of the military, like other public officers, discharge their
duties correctly, lawfully, and in good faith." Chayra v.
Us., 23 Cl. Ct. 172, 178 (1991)
(internal quotation marks omitted).
Despite the deferential standard of review, judicial review must nevertheless be
8
meaningful; a court is "not empowered to rubber-stamp the Board's decision simply because the
supporting evidence may be 'substantial' when considered by itself and in isolation from the
evidence that fairly detracts from the Board's conclusion." NLRB v. Adam & Eve Cosmetics, 567
F.2d 723, 727 (7th Cir. 1977). There must be a satisfactory showing that the decision being
reviewed was based on a "balanced consideration of all the evidence available and presented."
Mazur v. Orr, 600 F. Supp. 772, 783 (E D. Pa. 1985) (internal quotation marks omitted).
Turning to the case at hand, the issue is whether the Board's decision making process was
flawed, not whether the Board's decision was substantively correct. See Dickson v. Sec yo!
Defense, 68 F.3d 1396, 1405 (D.C. Cir. 1995) (stating judicial review of military personnel
decisions under APA is limited to determining whether "the decision making process was
deficient, not whether [the] decision was correct") (internal quotation marks omitted); see also
Tr. at 25-26 (Plaintiff's counsel agreeing). Here, it is clear that the AFBCMR considered all of
the relevant evidence before it, including the prior rulings of the military appellate courts, and it
is likewise clear that the Board's conclusions at least "minimally contain 'a rational connection
between the facts found and the choice made.'" Dickson, 68 F.3d at 1404 (quoting State Farm
Mut. Auto Ins. Co., 463 U.S. at 43). In this case, the Board offered a sufficient basis for its
reasoning by relying on the totality of the materials before it, including opinions provided by
legal advisors.
The Court reaches these conclusions based on its review of the record, including the
Board's explanation of its decisions. The Board denied Plaintiff's initial application on April 24,
2008. (D.1. 27 at I) As the Board noted, in that initial application Plaintiff contended that his
military defense counsel was incompetent in failing to investigate and call at trial character
9
witnesses and failing to challenge the vagueness of the dates of the offenses with which Plaintiff
was charged. (D.!. 27 at 2,8) In evaluating Plaintiffs application, the Board had before it a
record which included a detailed legal analysis prepared by the AFLOA/JAJM (D.!. 28 at 401
04), as well as Plaintiffs counsel's detailed response to that legal analysis (id. at 406-22). The
legal opinion provided to the Board recommended denial of the application as untimely (though
also noted that the Board had discretion to excuse the application's untimeliness) and
summarized Plaintiff s contentions, as well as the background legal standards. In analyzing
Plaintiff s specific contentions, the legal opinion stated:
At the time of his court-martial, the Applicant ... was in
the process of being administratively discharged from the AF under
applicable regulations for "unsuitability" to continued military life.
His supervisor, First Sergeant and commander each provided
evaluations describing the Applicant as very combative, hostile to
the point of insubordination, demonstrating questionable
acceptance of his NCO responsibilities and evincing an overall
negative attitude toward his job. Given that background, defense
counsel's decision not to pursue a "good soldier" character defense
(and, thereby, put those same qualities in issue at trial) appears
reasonable and warranted under the circumstances. Certainly, such
a sound tactical decision does not constitute the type of serious
deficiency warranting relief contemplated in Strickland.
The government called three eyewitnesses to the events
charged at trial. Although each witnessed described the
Applicant's activities with regard to use and solicitation of
marijuana with varying degrees of specificity, none was able to
meaningfully narrow the particular timeframes of the incidents
charged. Clearly, a bill of particulars requesting that the
government provide details (more specific dates) that the
government's own witnesses asserted under oath they could not
recall would have amounted to no more than a pointless exercise in
futility. The records shows the periods charged were based on the
best evidence available to the government. Those periods fell
well-within the notice standards required by applicable law and the
record of trial of which those specifications are a part has
10
withstood two full rounds of appellate scrutiny . . .. Given the
inability of the witnesses to further narrow the timeframes
involved, defense counsel pursued the most logical course open to
hm and thoroughly cross-examined each witness concerning the
lack of specific dates and more detailed memories, in an effort to
establish that their testimony was unreliable, inaccurate, or
otherwise incredible. That defense effort contributed significantly
to a full, fair and vigorously contested trial on the merits which, in
turn, placed the court-martial panel, as ultimate fact-finder, in the
best position to evaluate the evidence and determine whether it
established the Applicant's guilty beyond a reasonable doubt. The
nuanced and mixed verdict that resulted (acquittal of use of
marijuana and conviction of solicitation) is a concrete and
substantial indicator of the fairness of the trial process, as well as, a
demonstration of the measure of success, skill and care with which
defense counsel carried out his trial responsibilities.
(Id at 402-03)
The Board concluded:
Insufficient relevant evidence has been presented to
demonstrate the existence of error or injustice. . .. We find no
evidence which indicates the applicant's BCD and reduction in
rank, which had their bases in his conviction by special court
martial and were parts of the sentence of the military court, were
improper or that they exceeded the limitations set forth in the
Uniform Code of Military Justice (UCMJ). Furthermore, because
of the seriousness of his misconduct; that is, his solicitation of a
junior enlisted member to obtain marijuana and transfer it to him,
we are not inclined to afford him any relief based on clemency at
this time.
(D.L 27 at 4)
In November 2008, Plaintiff requested reconsideration of the Board's denial of his
application, based on newly-discovered evidence he contended had not been reasonably available
at the time of his initial application. (D.L 28 at 506) As the Board observed, the new evidence
was the documentation relating to the negative urinalysis test that had not been provided to
11
Plaintiff at the time of his trial as well as evidence of the alleged irregularities surrounding the
termination of Captain Ourand's representation of Plaintiff. (Id.) Again the Board had before it
an extensive record. (Id at 505-91) Again, this record included another legal opinion (id at
564-65) as well as Plaintiffs response to that opinion (id. at 587-91). The new legal opinion
included the following:
From my review of the file, it is questionable whether this
[purportedly newly-available] evidence was not reasonably
available earlier, and it certainly was available at the time of
appellate court review, but I would recommend the applicant
receive the benefit of the doubt on this issue.
. .. Finding an error or injustice to grant clemency is not
necessary....
Clemency is a very broad, and to a certain degree,
amorphous concept. Individuals who are in a position to grant
clemency are influenced by, and give weight to, different factors ...
The panel is of course free to use any basis that it finds
appropriate to support clemency, but basing clemency on a[] legal
error analysis for a UCMJ action []would appear to be inconsistent
with, if not subversive of, the AFBCMR's statutory limitation to
clemency in such matters. Nevertheless, it is a fine line between a
factor such as poor (but not legally inadequate) counsel
representation, or not being provided evidence that was routinely
provided at the time of trial (and currently mandated) being an
error and having it constitute a mitigating circumstance that could
support clemency on the sentence. It is for the panel to decide on
which side of the line these arguments fall.
Here, rather than attack the performance or trial tactics of
the counsel, he argues counsel could not perform adequately on
clemency matters because he was being removed inappropriately
and was generally distracted by personal and professional
controversy.... It is clear from the fact that there was such
extensive appeal of his case that some other attorney took up the
12
case. The AFBCMR is not in a position to investigate or [evaluate]
his or her perfonnance. The presumption of regularity would
establish that he or she would have become familiar with the case
including the negative urinalysis, and the removal of the first
counsel, and evaluated its importance on the appeal. On the other
hand, in fairness to the applicant, his assertion that the best window
to have the convening authority grant clemency was at least
compromised by the timing of counsel replacement does have
some validity, although this can occur even with routine counsel
separation or routine.
(ld. at 564-65)
The Board then concluded:
After again reviewing this application and the evidence
provided in support of his appeal, we remain unconvinced the
applicant has been a victim of an error or injustice. We have
previously detennined that the applicant's BCD and reduction in
grade to ainnan basic (E-l), which was the sentence he received
following conviction ... was neither improper not excessive.
While the applicant's contentions are duly noted, his latest
submission has not persuaded us otherwise. Further, we remain
unconvinced the seriousness of his misconduct has been overcome
by his post-service activities. While we acknowledge his
accomplishments since his discharge, we are not compelled at this
time to upgrade his BCD to honorable or restore his previous rank
on the basis of clemency.
(ld. at 508)
The Board is not required to spell out the minutiae of its logic in reaching a decision; it is
sufficient if there is enough evidence to allow the Court to discern how the Board reached its
decision. Here, this requirement is satisfied. There is no indication that the Board "failed to
consider an important aspect ofthe problem." State Farm Mut. Auto. ins. Co., 463 U.S. at 43.
The Board also specifically stated that it "took notice ofthe ... complete submission" of
Plaintiff's evidence, which it found insufficient to warrant a grant of clemency. (D.L 27 at 3-5)
13
Simply put, the Court finds no basis, under the very narrow and deferential legal standards that
apply, to disturb the Board's determination.
B.
Plaintiff's Constitutional Claims
Plaintiff contends he was "unjustly and unconstitutionally convicted of soliciting a
controlled substance," and that the Board's failure to recognize this
and its consequent rejection
of his request for a change in discharge status - was arbitrary and capricious. (D.I. 30 at 2) He
contends that his attorney, Captain Ourand, provided constitutionally ineffective assistance,
likely because undue influence was being exerted on him during the time Captain Ourand was
working on Plaintiff's case. Plaintiff further contends that the prosecution committed a "Brady
violation" by failing to provide him with evidence of a negative urinalysis test. In short, Plaintiff
insists that "clear and cogent evidence submitted by him to the AFBCMR showed that his 1983
court martial conviction was obtained by violating his Fifth and Sixth Amendment right to a fair
trial." (D.!. 30 at 7)
Plaintiff faces numerous procedural hurdles in his effort to place his alleged constitutional
violations before the Court. For example, the Board does not have jurisdiction to review these
constitutional issues, or to vacate Plaintiff's conviction, and the Court cannot remand the matter
to the Board with direction to take action the Board is not empowered to undertake. See
Williams v. Sec 'y ofNavy, 787 F.2d 552, 556 (Fed. Cir. 1986). Further, under Section 876 of
Title 10 of the Military Code, all military court decisions are considered final and conclusive.
See 10 U.S.C. § 876. Also, to the extent Plaintiffis asserting a Due Process claim, it appears to
be an attempted end-run around the AP A and Privacy Act, which impose particular standards of
14
review and procedural requirements (e.g., exhaustion).4 Nevertheless, the Court will assume,
without deciding, that it has jurisdiction to reach the merits of Plaintiff s constitutional claims.
As explained below, the Court concludes that none of these constitutional claims is meritorious.
If the Court were to reach the merits of Plaintiffs constitutional claims, the disposition of
the pending motions would be unchanged. The test for setting aside court-martial convictions
and subsequent denials of appellate review generally requires an inquiry into whether those
"military rulings on constitutional issues conform to Supreme Court standards." Kauffman v.
Sec y ofthe Air Force, 415 F.2d 991, 997 (D.C. Cir. 1969). Those seeking relief "must
demonstrate convincingly that in the court-martial proceedings there [was] such a deprivation of
fundamental fairness as to impair due process." Bowling v.
Us., 713 F.2d 1558, 1561 (Fed. Cir.
1983) ("[A] constitutionally unfair trial takes place only when the barriers and safeguards are so
relaxed or forgotten ... that the proceeding is more a spectacle ... or trial by ordeal ... than a
disciplined contest.") (citing
us.
v. Augenblick, 393 U.S. 348, 356 (1969».
Plaintiffs constitutional claims begin with his contention that he received constitutionally
ineffective assistance of counsel in connection with his court-martiaL "The benchmark for
judging any claim of ineffectiveness must be whether counsel's conduct so undermined the
proper functioning of the adversarial process that the trial cannot be relied on as having produced
a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). A criminal defendant must
show that counsel's performance was deficient - in other words, that counsel made errors serious
enough so that counsel was not functioning as guaranteed by the Sixth Amendment. See id at
4Although some of his filings were unclear on the point, see D.1. 1. at ~ 2.d; D.l. 30 at 17-18, at
the hearing Plaintiff's counsel confirmed that Plaintiff is not attempting to assert a separate Due
Process claim. (Tr. at 25)
15
688. Additionally, it must be shown that this deficient performance prejudiced the defense and
effectively deprived defendant of a fair trial. See id. In determining whether counsel's
performance was ineffective, the court employs an objective standard of "reasonably effective
assistance" considering all circumstances. See id.
In proving that counsel was ineffective, Plaintiff must do more than "show that the errors
had some conceivable effect on the outcome of the proceeding," and must demonstrate "that
there is a reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." fd. at 693-94. Courts must be highly deferential in
scrutinizing counsel's performance, and "counsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable professional
judgment." fd. at 689-90.
The record in the instant case does not show that Washington was deprived of his right to
effective assistance of counseL The Court is not convinced that Captain Ourand's performance
as Washington's defense counsel was deficient. To the contrary, the Court concludes from the
record that Captain Ourand executed his duties in a manner that comports with the objective
standard of reasonably effective assistance. (D.l. 27 at 33-154) One seeming manifestation of
Captain Ourand's effectiveness is the fact that Plaintiff was acquitted of one of the two charges
on which he was tried.
Plaintiff also contends that his relationship with Captain Ourand was wrongfully
interfered with and then terminated, and that Captain Ourand, as a result of being harassed by his
superiors, was unable to perform as a zealous advocate. (D.l. 30 at 13) The Court is not
persuaded by Plaintiff s argument that, but for the alleged interference with the attorney-client
16
relationship, Plaintiffs sentence would have been commuted by the reviewing authority
following the clemency hearing. Plaintiff contends that had Captain Ourand been able to meet
with the Wing Commander, General Cathey, Captain Ourand could have persuaded General
Cathey to accept the recommendation that Washington be granted clemency. (ld. at 11-12; D.l.
28 at 520 (Captain Ourand declaring: "If I had been allowed to finish his case, I believe Gen.
Cathey might have determined Ssgt Washington should have been acquitted of the solicitation
specification and the charge or, at least would have followed the recommendation of the Formal
Clemency Officer and disallowed the BCD and ordered a General Discharge instead."» This is
pure speculation. Furthermore, according to the Board's legal expert, attorneys are routinely
separated and rotated out of military court martial and clemency proceedings. (See D.l. 28 at
565) Moreover, Plaintiff was represented by counsel throughout the clemency proceedings, and
there is no reason to conclude that the attorney who succeeded Captain Ourand was ineffective. 5
Additionally, Plaintiff claims that Captain Ourand's failure to call good military character
witnesses, file a motion for a bill of particulars, or submit an alibi defense is reversible error.
(D.l. 30 at 14-18) But each of these decisions was well within the range of decisions that would
be made by effective, competent counsel. With regards to the failure to call character witnesses,
the evidence indicates that those witnesses would not have provided favorable impressions of
Washington to the court-martial. The paralegal that worked with Captain Ourand to prepare
5Plaintiff cites to DuBay v. US, 37 C.M.R 411, for the contention that whenever there is a
suggestion of improper command influence affecting a court-martial, the convening authority
loses the right to proceed. (See, e.g., Tr. at 15-16) But, even assuming Plaintiff is correct that
"after almost 30 years, it's impossible for us to go back and hold a DuBay [hearing] in this case"
(Tr. at 16), that fact does not render the Board's decision - which is what is under review by the
Court, and which was reached after considering Plaintiff's improper influence argument
arbitrary and capricious.
17
Plaintiffs defense has declared that "all of the witnesses provided to us by Ssgt Washington were
contacted by me and their comments about Ssgt Washington were not favorable except that his
dress and appearance standards were impeccable." (D.I. 28 at 522)6 Plaintiffs contention with
respect to the bill of particulars and an alibi defense relates to the broad nature of the criminal
charges he faced, which alleged that he solicited marijuana between March 1, 1982 and May 30,
1982, and that he used marijuana between February 1, 1982 and April 30, 1982. (D.I. 27 at 36)
Plaintiff believes that Captain Ourand should have asked the court-martial to direct the
prosecution to be more specific, so that he could more effectively defend himself, including with
an alibi defense. Such a course of action, however, would likely have proven futile, as it is plain
from the testimony of the prosecution's three witnesses that they (and therefore the prosecution)
could not be more specific about the date of Plaintiffs criminal conduct. Captain Ourand
attacked the government's case, and its lack of precision in terms of dates, by cross-examining
the government's witnesses on this point. (See id. at 62-98) This is not a constitutionally
defective choice by counsel.
Finally, Plaintiff contends that the prosecution violated his constitutional rights by
withholding from him evidence that he had tested negative for the presence of marijuana in a
urinalysis at the time of his arrest. Plaintiff submitted to a urinalysis during the time when his
quarters were searched, on November 5, 1982. (D.I. 28 at 523; D.I. 27 at 211; D.L 30 at 9)
6Thus, even if, as Captain Ourand declares, the judge had informed him that he would not allow
character witnesses during the trial (D.I. 28 at 519), and even if this were an erroneous decision
by the court-martial, the fact remains that there is no indication that the defense team had any
good character witnesses it could have called. As Captain Ourand explained, he " had no one to
call as a good conduct witness ... because none of the witnesses wanted to be seen as condoning
a NCO who used or solicited drugs from subordinates." (Id.)
18
Under Brady v. Maryland, 373 U.S. 83 (1969), the withholding of exculpatory evidence by the
prosecution can be reversible error. "If the omitted evidence creates a reasonable doubt that did
not otherwise exist, constitutional error has been committed." Us. v. Agurs, 427 U.S. 97, 112
(1976).
Here, the Court is not persuaded that the withheld urinalysis would have resulted in a
different trial verdict, especially given that the Plaintiff was acquitted of the use of marijuana
charge. While it arguably would have weakened the prosecution's case on the solicitation charge
had Plaintiff been able to present to the court-martial his negative urinalysis, the Court does not
conclude that this additional piece of evidence would have created reasonable doubt. The results
of the urinalysis test, even if wrongfully withheld during the trial stage, were not critical to a
"pivotal legal issue," see Us. v. Jackson, 59 M.J. 330, 335-36 (2004), in terms of deciding
whether Washington was guilty of the solicitation charge; one does not have to use marijuana to
be guilty of soliciting it. The testimony of the three prosecution witnesses could still have
provided proof beyond a reasonable doubt to convict Plaintiff on solicitation if such testimony
was believed, as evidently it was, by the court-martial.
Moreover, the relief requested by Plaintiff is not the vacating of his conviction; rather, he
is seeking a modification of his sentence, i.e., the change in discharge status. Plaintiff made the
same request at his clemency proceeding, and at that time he had obtained the negative urinalysis.
Plaintiffs attorney, however, did not present the negative urine test in the clemency proceeding.
This supports the Court's conclusion that the withheld urinalysis would not have altered the
outcome of the proceedings had it been provided to Plaintiff prior to trial.
19
C.
Conclusion
The Board twice considered Plaintiff s application for change in discharge status, and,
based on the evidence before it, twice denied that application. The Court concludes that the
Board did not act arbitrarily or capriciously. Nor has Plaintiff presented a meritorious
constitutional claim. Accordingly, the Court will deny Plaintiffs motion for summary judgment
on his APA claim and grant Defendant's motion for summary judgment on this same claim.
II.
Privacy Act Claim 7
Count III seeks review of the Board's decision pursuant to the Privacy Act. This claim
rests on Plaintiffs contention that, in denying his requested reliefto amend his records and
change the status of his discharge, the Board failed to maintain Plaintiffs records with accuracy.
The Court concludes that Defendant is entitled to summary judgment on Plaintiffs Privacy Act
claim.
Pursuant to the Privacy Act, an individual may file suit against a federal agency for failure
to amend a record regarding that individual in accordance with that individual's request. See 5
u.s.C. § 552a(g)(1); see also 5 U.S.C. § 552a(d) (setting out process for seeking amendment of
record pursuant to Privacy Act). However, the Privacy Act "is not a vehicle for amending the
judgments of federal officials." Kleinman v. Dep'f ofEnergy, 956 F.2d 335, 337-38 (D.C. Cir.
1992). Hence, the Privacy Act "may not be employed as a skeleton key for reopening
consideration of unfavorable federal agency decisions." Rogers v. Us. Dep 'f OfLabor, 607 F.
Supp. 697, 699 (N.D. Cal. 1985). If an agency's decision accurately reflects the conclusions that
7The Court addresses Count III before Count II because that is the order in which it was presented
by both parties in their briefs and in oral argument.
20
it reached, a court cannot amend the document, regardless of "how contestable the conclusion
may be." Douglas v. Agric. Stabilization & Conservation Serv., 33 F.3d 784, 785 (7th Cir.
1994); see also Bernard v. Us. Dep't ofDefense, 362 F. Supp. 2d 272,280-81 (D.D.C. 2005)
(rejecting Privacy Act challenge to substantive judgments made in administrative proceedings).
Within the Air Force, if an applicant seeks the correction of a factual wrong, he must
request a correction from the Air Force Records Systems Manager. See 32 C.F.R. § 806b.26.
Denial of such a request may then be appealed through the denial authority to the Secretary of the
Air Force, Fiscal and Administrative Law Division. See id. A denial at this level is reviewable
by a court. See id. If, alternatively, one is requesting correction of "subjective matters and
opinions" contained in Air Force records, such a request must be presented to the AFBCMR. See
32 C.F.R. § 806b.24. Importantly, "record correction requests denied by the Board are not
subject to further review under [the Privacy Act]." Id.; see also Douglas, 33 F.3d at 785
("Privacy Act does not authorize relitigation of the substance of agency decisions."); Blevins v.
Plummer, 613 F.2d 767, 768 (9th Cir. 1980) (limiting corrections of military records sought
under Privacy Act to factual matters).
Here, it is not entirely clear whether Plaintiff is challenging the factual accuracy of his
records or the subjective opinion of federal officials as embodied in his records. 8 Either way,
however, Plaintiff cannot prevail. To the extent he is raising a factual challenge - e.g., he was
not, in fact, guilty of soliciting marijuana from a subordinate - he failed to exhaust his
8At the hearing, Plaintiffs counsel described the Privacy Act claim as "based on two points."
(Tr. at 25) They are that Plaintiffs records do "not show that his conviction was accomplished
by a violation of his constitutional rights" and that if his records were corrected to show the
violation of his rights, "then his rank and military status as a sergeant, staff sergeant E6, ought to
be restored." (Id.)
21
administrative remedies, as he failed to request review by the Air Force Records System Manager
("AFRSM"). (D.l. 26 at 22-26; D.l. 27; D.L 28) Plaintiffs failure to exhaust his administrative
remedies is fatal to his Privacy Act claim. See Anjelino v. The New York Times Co., 200 FJd 73,
87 (3d Cir. 1999) ("[I]t is a 'basic tenet' of administrative law that a plaintiff should timely
exhaust all administrative remedies before seeking judicial relief ..."). Alternatively, to the
extent Plaintiff is not raising a factual challenge but is, instead, seeking review of the subjective
judgment of the Board - e.g., that he was properly denied clemency - no judicial review of such
a determination is available. Section 806b.24 of Title 32 provides that there is no further review
after a Board decision denying a challenge to "subjective matters and opinions" embodied in
records. See also Castella v. Long, 701 F. Supp. 578,585 (N.D. Tex. 1988) (stating amendment
request under Privacy Act is "not a vehicle for amending the judgments of federal officials or of
other parties as those judgments are reflected in records maintained by federal agencies.").
Accordingly, with respect to Count III, the Court will deny Plaintiff's motion for
summary judgment and grant Defendant's motion for summary judgment.
III.
Declaratory Judgment Claim
In Count II, Plaintiff seeks a declaratory judgment that the AFBCMR's decision not to
correct his military record to reflect an honorable discharge was unlawful and not based on the
evidence. He seeks a declaration of entitlement to a change of discharge status from BCD to
honorable, as well as a restoration of rank.
The Declaratory Judgment Act allows courts to "declare the rights and legal relations of
any interested party seeking such declaration, whether or not further relief is or could be sought."
28 U.S.C. § 2201. "The Act does not create substantive rights for parties; it merely provides
22
another procedure whereby parties may obtain judicial relief." Farmers Alliance Mut. Ins. Co. v.
Jones, 570 F.2d 1384, 1386 (10th Cir. 1978). Accordingly, the Act is not a separate basis for
exercising jurisdiction over a matter; a court must have another independent basis for jurisdiction
before addressing a request for a declaratory judgment. See Skelly Oil Co. v. Phillips Petroleum
Co., 339 U.S. 667, 671 (1950).
The Court agrees with Defendant that the Court's ruling on Plaintiffs APA and Privacy
Act claims necessarily also resolves his declaratory judgment claim. (D.1. 26 at 31)
Accordingly, for the same reasons given above with respect to Plaintiffs AP A and Privacy Act
claims, the Court will deny Plaintiffs motion for summary judgment on his declaratory judgment
claim and will grant Defendant's motion for summary judgment on this claim.
CONCLUSION
For the foregoing reasons, the Court will deny Plaintiffs motion for summary judgment
and grant Defendant's motion for summary judgment. An appropriate order follows.
23
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