Virginia Lawyers Weekly VA Lawyers Weekly
Plaintiff, a lieutenant colonel, cannot overturn placement of the record of an “Article 15” administrative hearing in his restricted personnel file in this challenge to the Army Board for Correction of Military Records, administered in response to his action at a military ball of pushing a junior enlisted man to the floor and injuring him in an effort to halt the man from photographing two women dancing together at the ball; the Alexandria U.S. District Court grants summary judgment to the Army.
Plaintiff seeks reversal of the ABCMR’s decision and a declaration that the defendants violated plaintiff’s fundamental rights, as well as an order: enjoining defendants from instituting separation proceedings against plaintiff pending the outcome of this action, directing defendants to remove the Article 15 and the relief for cause Officer Evaluation Report from plaintiff’s personnel file and requiring the ABCMR to restore plaintiff to the position he would have been in absent the wrongful findings. Alternatively, plaintiff seeks an order directing a Special Selection Board to convene to restore plaintiff to the position he held before the events underlying his claims.
Plaintiff’s own acknowledgement that he intentionally made contact with the photographer who then suffered injury “as a result” of his pushing the camera the man was holding into his face as the man fell to the floor establishes that the “bodily harm” element was met. That plaintiff later discovered that the man’s nose had not been fractured does not alter that conclusion. It is uncontested that the camera hit the man’s nose with sufficient force to cut the nose slightly causing it to bleed and the injury appeared sufficiently serious to his colleagues to warrant a trip to the emergency room, and medical professionals initially thought the nose was fractured. The emergency care professionals also preliminarily diagnosed the man with a concussion.
As summarized in seven pages of his amended complaint, plaintiff had an exemplary military record before the events in April 2012. He served three combat tour of duty and earned three Bronze Stars and seven Air Medals, including an Air Medal with a distinction for valor in combat. He was selected to serve as the Presidential Airlift Coordinator for the White House between 2008 and 2010; held various command positions during his career; received consistently exemplary OERs; and received numerous glowing evaluations by commanding officers.
That record is not relevant to the issues before this court. The informal Article 15 proceeding that plaintiff knowingly and voluntarily chose was conducted properly and the ABCMR’s affirmance of that proceeding was neither arbitrary, capricious, contrary to law nor unsupported by substantial evidence. Plaintiff was not denied due process because the process he was due was in fact followed and he was not deprived of any constitutionally recognized liberty or property interests.
Defendants’ motion to dismiss and for summary judgment is granted.
Downey v. U.S. Dep’t of the Army (Brinkema) No. 1:14cv1503, June 19, 2015; USDC at Alexandria, Va. VLW 015-3-329, 31 pp.
