KIGHT v. UNITED STATES
ORDER and MEMORANDUM OPINION granting 16 Motion for Summary Judgment; denying 24 Motion for Summary Judgment. Signed by Judge Barbara Jacobs Rothstein on 03/23/2012. (lcbjr1)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Civil Action No. 10-cv-0836 (BJR)
ORDER AND MEMORANDUM OPINION
ON MOTIONS FOR SUMMARY
Plaintiff Eugene Kight, a former United States Army E-1/Private, brings this action
against the United States, asserting that the Army Board for Correction of Military Records
(hereinafter “ABCMR” or “the Board”) acted arbitrarily and capriciously when it did not
upgrade Kight’s discharge from “other than honorable” (hereinafter “OTH”) to either an
honorable discharge or a general discharge with a reentry code that would allow him to re-enter
the military. Amended Complaint [dkt. #14] (hereinafter “Amd. Cmplt.”) ¶¶ 2-5. 1 The United
States filed a Motion for Summary Judgment [dkt. #16] (hereinafter “Def.’s Mot.”). Kight crossmoved for summary judgment [dkt. #24] (hereinafter “Pltf.’s Mot.”). Upon consideration of the
motions and the record of the case, the court concludes that the United States’ Motion for
Summary Judgment should be granted, and Kight’s Cross-Motion for Summary Judgment should
The parties have cross-moved for summary judgment under Federal Rule of Civil
As defendant notes, the defendant named in the caption of Kight’s Complaint, the United States, differs from the
defendants named in the body of his Amended Complaint, the Hon. John McHugh, Secretary of the Army, and the
Department of the Army. Am. Cmplt. ¶¶ 8-9. Defendant recognizes that it is not inappropriate to name the United
States as defendant in an action under the Administrative Procedure Act, but notes that, based on the terms of the
statute providing for the correction of military records, 10 U.S.C. § 1552(a)(1), the proper party defendant in this
case is the Secretary of the Army, the Hon. John McHugh, in his official capacity. Def.’s Mot. at 1 n.1. The court
will allow this case to proceed, but notes that the appropriate defendant would have been the Secretary of the Army.
See., e.g., Ashe v. McNamara, 355 F.2d 277, 278 n.1 (1st Cir. 1965) (allowing a records change case to go forward
against the Secretary of Defense, while noting that it would have been appropriate to have sued the Secretary of the
Procedure 56, which provides for entry of summary judgment if “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). Federal courts review final decisions of the ABCMR under the Administrative Procedure
Act, 5 U.S.C. § 706. Wilson v. McHugh, — F. Supp. 2d —, Case No. 11-CV-303, 2012 U.S.
Dist. LEXIS 16354, *10 (D.D.C. Feb. 9, 2012). In reviewing a case under the APA, the role of a
court is limited to reviewing the administrative record. Stuttering Found. of Am. v. Springer, 498
F. Supp. 2d 203, 207 (D.D.C. 2007). The role of the agency acting under the APA is to resolve
factual issues and arrive at a decision that is supported by the administrative record. Id. “[T]he
function of the district court is to determine whether or not as a matter of law the evidence in the
administrative record permitted the agency to make the decision it did.” Id. (quoting Occidental
Eng’g Co. v. INS, 753 F.2d 766, 769-70 (9th Cir. 1985)). In such cases, summary judgment
serves as the mechanism for deciding, as a matter of law, whether the agency action is supported
by the administrative record and otherwise consistent with the APA standard of review. Id.
Under the APA, a reviewing court shall “hold unlawful and set aside agency action,
findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law,” and “in excess of statutory jurisdiction, authority, or limitations, or
short of statutory right.” 5 U.S.C. § 706(2)(A), (C). An agency is required to “examine the
relevant data and articulate a satisfactory explanation for its action including a rational
connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). “The scope of review under the ‘arbitrary and
capricious’ standard is narrow and a court is not to substitute its judgment for that of the
The Secretary of the Army, who acts through the ABCMR, “may correct any military
record of [his] department when [he] considers it necessary to correct an error or remove an
injustice.” 10 U.S.C. § 1552(a)(1). A court must apply an unusually deferential standard when
reviewing an action of the ABCMR. Escobedo v. Hon. Pete Green, 602 F. Supp. 2d 244, 248
(D.D.C. 2009). “While the broad grant of discretion implicated here does not entirely foreclose
review of the Secretary’s action, the way in which the statute frames the issue for review does
substantially restrict the authority of the reviewing court to upset to Secretary’s determination.”
Kreis v. Sec’y of the Air Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989). The substantial deference
afforded military board decisions “is calculated to ensure that the courts do not become a forum
for appeals by every soldier dissatisfied with his or her ratings,” which would have the potential
to “destabilize military command and take the judiciary far afield of its areas of competence.”
Cone v. Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000). A decision by the ABCMR is not arbitrary
and capricious if it “minimally contains a rational connection between the facts found and the
choice made.” Frizelle v. Slater, 111 F.3d 172, 176 (D.C. Cir. 1997).
A correction board’s decision is “entitled to a presumption of regularity.” Escobedo, 602
F. Supp. 2d at 248 (citations omitted). The proceedings are governed by Army Regulation 15185, codified at 32 C.F.R. § 581.3, which provides that “[t]he ABCMR begins its consideration
of each case with the presumption of administrative regularity,” and that “[t]he applicant has the
burden of proving an error or injustice by a preponderance of the evidence.” 32 C.F.R. §
581.3(e)(2). The district court is not to function as a “super correction board” by reweighing the
evidence. Charette v. Walker, 996 F. Supp. 43, 50 (D.D.C. 1998). The standard of review “does
not require a reweighing of the evidence, ‘but a determination of whether the conclusion being
reviewed is supported by substantial evidence.’” Walker v. Shannon, 848 F. Supp. 250, 255
(D.D.C. 1994) (quoting Heisig v. United States, 719 F.2d 1153, 1157 (Fed. Cir. 1983) (emphasis
FACTUAL AND PROCEDURAL BACKGROUND 2
Eugene Kight enlisted in the United States Army on March 13, 1995. Administrative
Record (hereinafter “AR”) 153. On July 21, 1995, he injured himself in basic training by falling
while running uphill backwards. AR 77-78; Amended Complaint [dkt #14] (hereinafter “Amd.
Cmplt.”) ¶ 13-14. Kight’s injury aggravated a lower back injury that existed prior to service. AR
82-85; Amd. Cmplt. ¶ 14. Over the next two months, Kight was evaluated for the injury by
medical personnel, none of whom considered the injury to be unfitting for military service. AR
77-85. One examiner noted his belief that Kight was “using a pre-entry problem to get out of a
job which is not what he thought it would be.” AR 85.
Over the course of August and September 1995, Kight received behavior counseling from
members of his unit on a number of occasions. 3 On August 9, 1995, Kight was counseled
because he told his unit leadership that he would like to get out of the Army because he had
failed to adapt. He also stated that he might take a course of action on his own to provoke the
commander into discharging him from the Army. Kight was reminded that, were he to break a
rule or regulation, it could result in action being taken against him under the Uniform Code of
Military Justice (“UCMJ”). He was encouraged to fulfill his obligation to the Army. On August
29, 1995, Kight was counseled because he left his guard post without being properly relieved.
On August 31, 1995, he was counseled on his duty performance, because he showed little to no
motivation and failed to make an effort to pull his weight in the squad. On September 16, 1995,
In cases in which judicial review is based solely on the administrative record, Local Rule 7(h) requires that
motions for summary judgment and oppositions thereto include a statement of facts with references to the
administrative record. LCvR 7(h)(2). The United States submitted a Statement of Facts [dkt. #16-1], while Kight
referred the court “to the ABCMR Record of Proceedings, June 28, 2011, (AR 3-17) and Plaintiff’s Amended
Complaint (ECF No. 14) for the factual and procedural background in this case.” Pltf.’s Mot. at 2. Kight cannot rely
on the factual claims in his Amended Complaint, as it does not contain references to the administrative record.
Thus, defendant’s Statement of Facts will be considered undisputed, insofar as it is supported by the Administrative
Such counseling is prerequisite under paragraphs 5-8 and 5-13, chapters 11 and 13, and chapter 14, section III, of
Army Regulation 635-200. Such counseling may also be used to document failures of rehabilitation efforts in
administrative discharge proceedings. AR 86-89.
Kight refused to carry his rucksack from a platoon patrol base to a new location, complaining of
back pain. An officer ordered Kight to put on his rucksack despite his complaints, citing Kight’s
“history of malingering” in his statement on the incident. On September 29, 1995, Kight was
counseled for failing to be at the proper place of duty at the proper time after he missed
formation. AR 86-92.
On October 16, 1995, Kight attempted to harm himself by taking two bottles of different
pills. Kight told the soldier who found him that he took the pills because of his severe back pain.
As they spoke, Kight also said that he had problems in his unit, and that he had tried to get their
attention for help. He stated that he did not want to be in the service, and he wanted to get out.
On February 14, 1996, Kight was charged under the UCMJ for three unexcused absences,
for willfully disobeying a lawful command from a superior commissioned officer, for
malingering (specifically, feigning physical disability or intentionally injuring himself to avoid a
training exercise when he consumed two bottles of pills), and for wrongfully straggling during a
training exercise. AR 94-95; Amd. Cmplt. ¶¶ 22-25. Kight’s attorney, the Senior Defense
Counsel for Fort Drum, advised Kight of the basis for his contemplated trial by court-martial and
the maximum permissible punishment authorized under the UCMJ. Kight was also advised of
the alternative of accepting an OTH discharge, of the possible effects of a discharge
characterization of OTH, and of the procedures and rights available to him. AR 98.
On March 4, 1996, Kight requested a discharge in lieu of trial by court-martial. Kight
stated that his request was voluntary and not subject to coercion; that he understood the elements
of the offenses charged and was guilty of at least one of the charges; that he has been afforded
the opportunity to consult with appointed counsel, who had advised him of the nature of his
rights under the UCMJ; that, were he to be discharged with an OTH discharge, it could result in
substantial prejudice in civilian life; and that there was no automatic upgrading or review for an
OTH discharge. AR 96-98. In his January 2009 application to the Board, Kight explained that
his counsel told him that he was likely to win his court-martial, and while a voluntary discharge
could have him out of the Army within 72 hours, it could be under OTH conditions. Kight also
stated that his attorney told him that he could apply for an upgrade after a year. Kight stated that
the discharge was not the option he wanted to take, but that he believed the next three years
would mean “HELL” from his chain-of-command. AR 39.
On March 14, 1996, Kight underwent a comprehensive medical examination. The
examiner found no significant illnesses, defects, or conditions, and concluded that Kight was
qualified for separation. AR 103-111. On March 25, 1996, Kight’s company commander,
battalion commander, brigade commander, and trial counsel recommended to the Staff Judge
Advocate that Kight’s request for discharge in lieu of court-partial be approved. On the same
day, Kight’s request was approved. AR 160-61. On March 29, 1996, Kight was discharged
under OTH conditions, his rank was reduced to the lowest enlisted grade, he was given a reentry
code of “3” and a separation code of “KFS,” 4 and the court-martial charges were dismissed. AR
On November 13, 1996, Kight applied to the ABCMR requesting an upgrade in his
discharge characterization. The request was denied on April 8, 1998. AR 133-37. On July 24,
2006, Kight brought his request for an upgrade to the Army Discharge Review Board
(hereinafter “ADRB”). The ADRB denied his request on August 1, 2007. AR 128-30. On
A reentry code of 3 applies to a “[p]erson who is not considered fully qualified for reentry or continuous service at
time of separation, but disqualification is waivable.” AR 217. Given a separation code of “KFS,” which Kight
received as a consequence of being separated in lieu of trial by court-martial under Chapter 10 of Army Regulation
635-200, a reentry code of “3” is “probable” under Army regulations. AR 153, 218.
January 12, 2009, Kight appealed to the ABCMR seeking review of the ADRB denial of his
request for an upgrade in discharge characterization. AR 30. 5
Kight’s request to the ABCMR for re-characterization of his military records argued that
the military failed to acknowledge and accommodate the injuries that Kight was suffering from
when the alleged offenses were committed. He also argued that the military failed to recognized
the possible “undue command influence” in the decision to prosecute him. He claimed that he
had not been afforded a medical examination prior to his discharge. Furthermore, he argued that,
as a matter of equity, his discharge should be re-characterized as ten years had passed since he
was out of the military, “more than several years past any possible punishment Applicant would
have faced,” but he still lived with the stigma attached to his OTH discharge. Finally, Kight
requested an upgrade as a matter of clemency in order to remove the stigma inherent in an OTH
discharge. AR 32-33.
On June 28, 2011, the ABCMR denied Kight’s request for relief, finding that he had been
properly and equitably discharged in accordance with the regulations in effect at the time, that
there was no evidence of procedural errors which would have jeopardized his rights, that all
requirements of law and regulation were met and his rights fully protected throughout the
separation process, and that his discharge properly reflected his overall record of service. AR 21.
On September 1, 2011, this case was reassigned from Judge Walton to Judge Rothstein.
Reassignment of Civil Case [dkt. #12]. On September 12, 2011, Kight filed his Amended
Complaint in response to the ABCMR’s June 28, 2011 decision.
The procedural history becomes convoluted. Kight’s January 2009 application was initially denied without
consideration on June 18, 2009, because the ABCMR found it to be untimely. AR 112. On October 26, 2009, Kight
filed suit in the U.S. Court of Federal Claims. Amd. Cmplt. ¶ 37. On April 30, 2010, the Court of Federal Claims
transferred the case to the D.C. District Court for lack of jurisdiction. Order Granting Request for Transfer [dkt. #1].
On December 10, 2012, the United States filed a Consent Motion for a Voluntary Remand to the Agency [dkt. #3]
(hereinafter “Remand Mot.”). Defendant explained that it was not clear from Kight’s application for reconsideration
that he was appealing the October 2008 ADRB decision, rather than the ABCMR’s April 1998 decision. Remand
Mot. at 2. On December 14, 2008, Judge Walton granted the motion to remand to the ABCMR, while retaining
jurisdiction over the case. Remand Order [dkt. #4]. Kight’s January 2009 application was denied on remand.
Kight claims that the ABCMR acted arbitrarily and capriciously when it “failed to act as
a remedial board of equity, and did not give Plaintiff’s contentions proper weight in light of the
surrounding facts.” He further claims that the ABCMR failed to consider his injuries and
subsequent pain, the “secondary effects” of the injuries (including side effects from medication
and the impact on his mental health), and that his chain-of-command failed accommodate him
properly. He also claims that the ABCMR “failed to articulate more than a naked conclusion” as
to why his claim that his re-entry code should be upgraded “lacked merit.” 6 Amd. Cmplt. ¶¶4345. Kight argues that the ABCMR should not have been able to rely on his lack of supporting
evidence for his testimony, because that evidence would be in exclusive custody of the Army.
Pltf.’s Mot. at 5. Kight also argues that the ABCMR acted arbitrarily and capriciously by
“ignoring or unreasonably construing all evidence and testimony” that supported his account of
events. Id. at 6-7. Finally, Kight argues that ABCMR failed to act as a board of equity to
“correct an injustice,” which was “in violation of its statutory mandate.” Id. at 10.
Kight’s resignation was voluntary
While Kight’s challenges largely attack the charges leveled against him under the UCMJ,
and aim to undermine the validity of those charges, the arguments ultimately turn on whether
Kight’s resignation was voluntary. See Wilson, 2012 U.S. Dist. LEXIS 16354, at *12. If Kight’s
resignation was voluntary, the fact that he resigned rather than contesting the charges in a courtmartial precludes him from challenging the underlying charges. Id., at *14. A soldier who
voluntarily resigns gives up his opportunity to dispute the strength of the charges against him in a
The United States addressed this claim in its motion for summary judgment, explaining that, under Army
Regulations, a reentry code of “3” is appropriate for someone discharged under separation code “KFS” (see footnote
3, supra). Def.’s Mot. at 18. As ABCMR found nothing improper about Kight’s discharge process, it followed that
his reentry code was also proper. Kight did not respond to the United States’ argument in his opposition. As such,
he concedes his claim to relief on that point. See Day v. D.C. Dep’t of Consumer & Regulatory Affairs, 191 F. Supp.
2d 154, 159 (D.D.C. 2002) (“If a party fails to counter an argument that the opposing party makes in a motion, the
court may treat that argument as conceded.”).
court-martial, “[j]ust as a criminal defendant who voluntarily accepts a plea offer thereby waives
his right to challenge the prosecution’s evidence in court.” Id.
In Veitch v. England, the D.C. Circuit held that a serviceman could not seek review of
charges that were brought against him under the UCMJ when he had chosen to voluntarily resign
rather than contest the charges in a court-martial. Veitch v. England, 471 F.3d 124, 129 (D.C.
Cir. 2006). Under Veitch, the risk of a felony conviction and jail time that could have followed
from proceeding to trial by court-martial does not meet the standard for unlawful government
duress or coercion that would invalidate the resignation. The test for such duress is objective,
and consists of three elements. Under a reasonable person standard, the party alleging duress
must (1) involuntarily accept the terms of the government, (2) under circumstances permitting no
other alternative, and (3) said circumstances were the results of the government’s coercive acts.
Id. at 128. The court held that Veitch could not claim that he was without alternative
circumstances, because successfully contesting the court-martial would have provided him with
full relief from the allegedly unlawful charge leveled at him. Id. at 129. By resigning in the face
of his court-martial charges, Veitch had failed to exhaust his military court remedies, and could
not “escape the consequences of that decision” by claiming that the court-martial charges
themselves were evidence that his resignation was coerced. Id.
In his memorandum to the ABCMR, Kight alluded to “undue command influence,”
claiming that his chain-of-command, whom he “spoke against at a military court,” was punishing
him for his injuries. AR 32. He explained in a separate statement to the ABCMR that he
believed he would win his court-martial, but chose discharge because he did not want three more
years of “HELL” with his chain-of-command. AR 39. Kight’s due process claim to the ABCMR
made no allusions to his chain-of-command, however. 7 In his present motion for summary
judgment, Kight claims that accepting a discharge in lieu of court-martial was “the only
reasonable choice” he had given the “duress” he experienced in the military, and in the face of a
court-martial with a maximum punishment of dishonorable discharge, forfeiture of all pay and
allowances, and six years of confinement. Pltf.’s Mot. at 9.
To the extent that Kight did raise the argument before the ABCMR that he resigned under
duress, the Board’s determination that Kight was “properly and equitably discharged in
accordance with the regulations in effect at the time,” and that there were no “procedural errors
which would have jeopardized his rights” is supported by substantial evidence and was not
otherwise arbitrary and capricious. AR 21. Kight’s signed request for resignation purports to be
voluntary, and makes clear that he consulted with counsel and understood the possible
ramifications of his resignation, including an OTH discharge. AR 96-97. Furthermore, duress “is
not measured by Plaintiff’s subjective evaluation of his circumstances.” Wilson, 2012 U.S. Dist.
LEXIS 16354, at * 19 (citations omitted). As was the case in Veitch, Kight had the option of
defending himself before the court-martial, and even claimed he expected to be successful, but
chose to leave the Army rather than pursue the court-martial alternative.
The Board’s decision was supported by substantial evidence
In light of the voluntariness of Kight’s resignation, his arguments concerning the Board’s
consideration of certain evidence and testimony may only be considered in connection with his
claim that the ABCMR failed in its statutory mandate by refraining from acting equitably.
Indeed, Kight relies heavily on the claim that his discharge should be re-characterized as a matter
of equity, and that the Board’s failure to consider certain evidence was damaging to his claims
for equity and clemency. Pltf.’s Mot. at 6.
Kight’s due process claim before the ABCMR alleged that he had not been afforded a medical examination prior to
discharge; however, medical records showed that he did receive such an examination, and Kight has not raised the
issue before this court. AR 20-21, 33.
While the standard of review applied when a district court reviews the decision of the
ABCMR is particularly deferential, see supra at Section I, there are, of course, limits to that
deference. Army Regulations require that the ABCMR, “if persuaded that material error or
injustice exists, and that sufficient evidence exists on the record, direct or recommend changes in
military records to correct the error or injustice.” 32 C.F.R. § 581.3(b)(4). “When a correction
board fails to correct an injustice clearly presented in the record before it, it is acting in violation
of its mandate.” Roth v. United States, 378 F.3d 1371, 1381 (Fed. Cir. 2004) (quoting Yee v.
United States, 512 F.2d 1383, 1387 (Ct. Cl. 1975)). However, the burden always rests with the
plaintiff to show that there has been an error or injustice. Poole v. Harvey, 571 F. Supp. 2d 120,
125 (D.D.C. 2008). Review of a military board’s decision by the district court does not require a
reweighing of the evidence, but consideration whether the conclusion being reviewed is
supported by substantial evidence. Walker, 848 F. Supp. at 255.
Kight argues that the Board acted arbitrarily and capriciously by finding he lacked
supportive evidence, and contends that the preponderance of that evidence would have been in
the custody of the Army. Kight argues that the Board acted “contrary to its mandate” when it did
not assist him in obtaining relevant documentation. Pltf.’s Mot. at 6. The ABCMR is not an
investigative body, but it may hold a hearing or request additional evidence or opinions in its
discretion. 32 C.F.R. § 581.3(c)(2)(iii). The United States notes that, even had it wanted to
obtain the evidence that Kight referenced, his references were vague, and it was not possible to
determine what records would be relevant. Defendant’s Memorandum in Opposition to
Plaintiff’s Cross-Motion for Summary Judgment [dkt. # 25] at 4 n.2. Kight responds that he
“clearly could have provided more specific details if given the opportunity.” Plaintiff’s Reply
[dkt. #27] at 3.
In his statement to the Board, Kight made vague references to an investigation
surrounding theft by another soldier, a court-martial hearing, and a Senate investigation, all of
which he claims resulted in retaliation by his chain-of-command. AR 39. It is by no means
“clear” that he could have provided more specific details. It is also unclear that the evidence he
suggests the Army had in its possession would have gone any further to supporting his claim of
retaliation by his chain-of-command. On the other hand, the ABCMR had substantial evidence
showing that Kight had expressed a desire to get out of the Army on more than one occasion, and
multiple reports as to the infractions that resulted in his court-martial charges. The ABCMR was
well within its discretion when it did not request additional evidence.
Kight also argues that ABCMR ignored or unreasonably construed the evidence he
presented, i.e., his testimony. He argues that the ABCMR minimized his account of his
persistent lower back pain and his characterization of his mental state, and claims that the Board
should have considered these factors in determining whether to act equitably. The record
demonstrates that Kight underwent multiple medical exams showing that, while he injured his
tailbone in a training exercise, he did not experience any fractures, and his spine was otherwise
normal. AR 77-85.
The ABCMR will direct or recommend changes in a military record if it is persuaded that
material error or injustice exists, and that sufficient evidence supporting the existence of the error
or injustice exists on the record. 32 C.F.R. § 581.3(b)(4)(ii). There is no indication that the
Board ignored or unreasonably construed the evidence before it. While Kight claims his
testimony was not considered, the record demonstrates that the ABCMR came to the reasonable
conclusion that his testimony did not outweigh the substantial evidence on the record
contradicting his testimony, including multiple statements by medical examiners and military
personnel at the time of Kight’s injury and infractions.
Finally, Kight claims that “the stigma of [his] discharge characterization has imposed
punishment greatly excess [sic] of his ‘crimes.’” Pltf.’s Mot. at 10. This claim is without merit.
The ABCMR’s decision was supported by substantial evidence, and was not arbitrary and
capricious. The Board has no duty to relieve Kight of the burden he took on knowingly and
voluntarily when he requested a discharge rather than face the court-martial charges.
In light of the foregoing, it is, hereby,
ORDERED that defendant’s Motion for Summary Judgment is GRANTED. It is
ORDERED that plaintiff’s Cross-Motion for Summary Judgment is DENIED.
March 23, 2012
BARBARA J. ROTHSTEIN
UNITED STATES DISTRICT JUDGE
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