Rucker, 702 F.2d at 969; Johnson v. Reed, 609 F.2d at 789.
Wronke's claim is a substantial one. The substance of Wronke's
claims is that the Elimination Board failed to follow the proper
hearing procedures in deciding his case. More specifically Wronke
claims the Elimination Board failed to follow Army regulation
135-175 Para. 2-5(a), which would have required a finding that he
had not in fact violated AR 135-175 Pars. 2-12(d) and 2-12(o).
Review is particularly appropriate where a challenged action is
alleged to have violated a particular service's own regulation.
See Konn v. Laird, 460 F.2d at 1319; Hickey v. Commandant of
Fourth Naval District, 461 F. Supp. 1085, 1091 (E.D.Pa. 1978).
Wronke's claim of violation of due process stems directly from
the question whether he was entitled to certain rights under the
applicable Army regulations and for this court to make that
determination it would have to go no further than an examination
of the Army regulations.
As to the second factor, injury to the plaintiff if relief is
denied, this court finds that the harm that would flow to the
plaintiff is substantial, and would include reduction or
elimination of certain veteran benefits, loss of promotion, and
of course, discharge from the Army Reserve itself.
As to the third factor, the amount of interference with
military matters if relief is granted, the court finds that any
interference would be minimal as any order to be issued from this
court would only require the Army to follow its own regulations.
As to the fourth factor, the degree to which military expertise
and discretion is involved, the language of the regulations
regarding the procedures and standards to be employed during the
Elimination Board hearing does not involve any military expertise
and the Elimination Board's discretion in the implementation of
the regulations is limited.
The court, therefore, finds that Wronke's claims of violation
of due process and Army regulations are appropriate for review.
Once it has been determined that review is proper, the standard
for review of actions and procedures of a Military Records
Corrections Board is whether the actions and procedures were
arbitrary, capricious, unsupported by substantive evidence, or
contrary to law and regulation. See Dilley v. Alexander,
603 F.2d 914, 920 (D.C.Cir. 1979); Nolen v. Rumsfeld, 535 F.2d 888, 890
(5th Cir. 1976), cert. denied 429 U.S. 1104, 97 S.Ct. 1133, 51
L.Ed.2d 556 (1977); ben Shalom v. Secretary of Army, 489 F. Supp. 964,
971 (E.D.Wisc. 1980); Kalista v. Secretary of Navy,
560 F. Supp. 608, 612 (D.Colo. 1983); Dumas v. The President of the
United States, 554 F. Supp. 10, 16 (D.Conn. 1982). Review of the
actions and procedures of the ABCMR is not limited to the record
of the Corrections Board; the record of previous precedings
before other military bodies may also be reviewed. See Kalista,
560 F. Supp. at 612.
While the plaintiff's complaint for declaratory and injunctive
relief raises numerous claims for violation of the plaintiff's
rights under the Fifth Amendment due process clause as well as
concerning the Elimination Board's failure to follow several
different Army regulations, this court will focus on only one
claim of the plaintiff which the court finds to be dispositive of
the case at hand.
AR 135-175 Para. 2-5(a) provides that "no officer will be
considered for elimination for the reasons in Paragraph 2-11 or
2-12 because of conduct that has been the subject of judicial
proceedings resulting in an acquittal based on the merits of the
case or in an action having the same effect." In proceedings
before the NTSB, concerning the revocation of the plaintiff's
commercial pilot's license by Administrative Law Judge Fowler on
October 27, 1978, the revocation of the license was upheld by the
NTSB. An order by the ALJ that prohibited the
plaintiff from applying for a new license for a one-year period
was vacated, however. The NTSB stated that:
In the absence of any probative evidence that
respondent's application was based on a deliberate
intent to mislead the FAA,*fn14 we are not persuaded
that barring a new application for a full year would
serve any meaningful safety purpose.
See NTSB Opinion and Order, No. EA-1211 (adopted November 13,
The plaintiff claims that in the officer elimination action
before the Elimination Board, the substance of the charged
offenses against the plaintiff required proof of intentional
misrepresentation or knowing fraudulent conduct. The plaintiff
states that the finding the NTSB that there was no probative
evidence that the respondent's application to the FAA was based
on any deliberate intent to mislead, has the same effect as an
acquittal and under AR 135-175 Par. 2-5(a) should therefore serve
as a bar to the elimination action. The ABCMR specifically found,
however, that the "decision made by that Board [NTSB] was not
binding on the military". See ABCMR Memorandum of Consideration
and Decision, Docket No. AC82-10426 (January 12, 1983) at 6.
The defendants claim that the ABCMR and Elimination Board were
not bound by the NTSB decision. They state that "[t]here is no
doctrine of administrative collateral estoppel, and the board of
officers was not bound by the independent although related
findings of the NTSB." See Memorandum of Points and Authorities
in Support of Defendants' Opposition to Plaintiff's Motion for
Summary Judgment and Defendants' Cross-Motion for Summary
Judgment, at 23. The defendants allege that the NTSB proceedings
were not judicial proceedings, and they were also not "an action
having the same effect" under the provisions of AR 135-175, Para.
2-5(a). Defendants opine that the thrust of the provision is to
prevent an elimination action against an officer who has been
successful in judicial proceedings whether as the result of an
acquittal or of some other action, such as a dismissal at trial
on certain motions that have the same effect.
Although a district court's scope of review is limited where
military decisions are involved, a court may review such
decisions to insure that military regulations are followed. White
v. Callaway, 501 F.2d 672, 674 (5th Cir. 1974); Wells v.
Commander of Third Battalion, 441 F. Supp. 336, 339 (E.D.Mo.
1977). Where the meaning of a regulation is in question, the
Army's own interpretation of its regulations must be given
controlling weight unless it is plainly erroneous or inconsistent
with the regulation. See Harris v. Brown, 470 F. Supp. 250, 253
(W.D.Mo. 1979) (citing U.S. v. Larionoff, 431 U.S. 864, 97 S.Ct.
2150, 53 L.Ed.2d 48 (1977)); see Hodges v. Callaway, 499 F.2d at
423 (Army ought to be primary authority for the interpretation of
its own regulations). If the applicable regulations are
interpreted by the Army in a reasonable manner, any charge of
procedural irregularity must fail even though the petitioner may
present another reasonable interpretation of the regulations. See
Cunningham v. Hoffman, 420 F. Supp. 325, 328 (M.D.Tenn. 1976).
Thus where a military regulation is susceptible to equally
reasonable constructions, a court may not substitute an
alternative interpretation for the interpretation of the military
service. See McCourt v. Culkin, 473 F. Supp. 1247, 1250 n. 6
(E.D.Pa. 1979) (citing Keister v. Resor, 462 F.2d 471 (3rd Cir.
1972), cert. denied 409 U.S. 894, 93 S.Ct. 116, 34 L.Ed.2d 151
The court, however, does not find the Army's interpretation of
AR 135-175 Para. 2-5(a) to be a reasonable interpretation and the
court instead finds that the Army's interpretation is plainly
erroneous and inconsistent with the wording of the regulation.
The court has examined the opinion and order of the NTSB and
finds it to be "an action having the same effect" as a "judicial
proceeding resulting in an acquittal
based on the merits". The court finds the defendants' reading of
AR 135-175 Para. 2-5(a) to be untenable. It is apparent to the
court that the "action having the same effect" phrase in the
paragraph refers to proceedings with results that are similar to
judicial proceedings resulting in an acquittal based on the
merits. The opinion and order of the NTSB is such an action and
therefore any finding by that body would be binding upon the
Elimination Board and the ABCMR under Para. 2-5(a).
In the NTSB proceedings it was found that there was an absence
of any probative evidence that Wronke's application to the FAA
for a commercial pilot license was based on any deliberate intent
to mislead the FAA and was more the result of the lack of an
understanding of pertinent FAA and military standards. The
charges against plaintiff Wronke in the Board's elimination
hearing, whose decision to eliminate the plaintiff was
subsequently approved by the ABCMR, were based on AR 135-175
Paras. 2-12(d) and 2-12(o). Paragraph 2-12(d) states that an
officer may be eliminated from the Army Reserves where he has
committed an "intentional omission or misstatement of facts in
official statements or records, for the purpose of
misrepresentation." The finding by the NTSB, that there was no
probative evidence that Wronke's application was based on a
deliberate intent to mislead, bars under AR 135-175 Para. 2-5(a)
a finding that Wronke "intentionally omitted or misstated facts
and official statements or records for the purpose of
misrepresentation." AR 135-175 Par. 2-5(a) operates to estop a
finding by the Elimination Board and the ABCMR that Wronke
intentionally omitted or misstated facts in his application for
a commercial pilot's license for the purpose of misrepresentation
of his past military flying record.
The plaintiff Wronke was also charged under AR 135-175 Para.
2-12(o), which states that reserve officers may be eliminated for
"conduct unbecoming an officer." The defendants have argued that
even if the findings by the NSTB are determined to estop the
application of 2-12(d) to Wronke, the NTSB determination still
does not estop any decision by the Elimination Board that
Wronke's conduct was unbecoming an officer. The defendants claim
that the Elimination Board considered other questionable conduct
of Wronke besides the application for the commercial pilot's
license in its determination that he committed conduct unbecoming
an officer. An examination of the transcript of the Elimination
Board hearing, however, demonstrates that the Elimination Board
determined that Wronke had committed conduct unbecoming an
officer because he had intentionally misstated his service flight
record for the purpose of misrepresentating himself to the FAA.
See Officer Elimination Board Hearing Transcript, In the Matter
of: Major Kenneth L. Wronke (January 10, 1981) at 213-227. As the
substance of the Elimination Board's finding of conduct
unbecoming an officer relied on the determination that plaintiff
Wronke had deliberately intended to mislead the FAA, the findings
of the NSTB also operate, pursuant to AR 135-175 Para. 2-5(a), to
estop the Elimination Board's determination that Wronke had
committed conduct unbecoming an officer.
The court finds that the ABCMR and the Elimination Board failed
to follow AR 135-175 Para. 2-5(a), which required them to give
full faith and credit to the determination of the NTSB that
Wronke had not deliberately intended to mislead the FAA in his
application for a commercial pilot's license. If the Elimination
Board and the ABCMR had complied with AR 135-175 Para. 2-5(a),
the charges against Wronke would have been dismissed. The
discharge order given to the plaintiff, effective June 14, 1982,
is therefore vacated. The defendants are ordered to reinstate the
plaintiff to all rank and privileges to which he would have been
entitled but for the proceedings before the Elimination Board and
his subsequent discharge. The defendants are also ordered to
tender to the plaintiff all
back pay owed to him not exceeding the amount of $9,999.99. The
Clerk shall enter judgment accordingly.
IT IS SO ORDERED.
*fn14 Rather, it appears the application was more the result of a
lack of understanding of pertinent FAA and military standards.
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