Blackwell v. Marsh

574 F. Supp. 210, 1982 U.S. Dist. LEXIS 10290
CourtDistrict Court, N.D. Georgia
DecidedOctober 8, 1982
DocketNo. C82-178A
StatusPublished
Cited by1 cases

This text of 574 F. Supp. 210 (Blackwell v. Marsh) is published on Counsel Stack Legal Research, covering District Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blackwell v. Marsh, 574 F. Supp. 210, 1982 U.S. Dist. LEXIS 10290 (N.D. Ga. 1982).

Opinion

ORDER OF COURT

MOYE, Chief Judge.

In this action plaintiff seeks judicial review of an adverse decision of the defendant, acting through the Army Board of Correction of Military Records (BCMR), on an application by plaintiff to change the character of his military discharge from Dishonorable to General.

On June 4, 1957, plaintiff appeared before a General Court Martial at which time he pled guilty and was subsequently convicted of aggravated assault on another soldier during the early morning hours of May 5, 1957. Thereafter, plaintiff received a sentence of ten months confinement, forfeiture of all time and pay, and a dishonorable discharge retroactive to April 3, 1957. On July 3, 1957, the finding and sentence were affirmed by the Board of Review.

On January 15, 1980, the BCMR received from plaintiff an application for correction of military or naval record. On October 1, 1980, plaintiffs application was denied by the BCMR. On May 18, 1981, the Evaluation and Inquiries Branch of the Office of the Surgeon General (OTSG), affirmed its opinion of September 8, 1980, that no upgrade of plaintiffs discharge on medical purposes was warranted. On August 6, 1981, the BCMR again denied plaintiffs request for a hearing on the application and reaffirmed its determination that plaintiffs military service is appropriately characterized by a dishonorable discharge. Thereafter, on January 28, 1982, plaintiff filed the instant action.

Motions presently pending are (1) defendant’s motion to dismiss or in the alternative for summary judgment and (2) plaintiffs motion for summary judgment. Defendant’s motion to dismiss pursuant to Fed.R. Civ.P. 12(b)(6) must be DENIED, inasmuch as the complaint does sufficiently state a claim upon which relief may be granted. As plaintiff points out in his brief in opposition to defendant’s motion, the complaint makes precisely the allegation that defendant admits would, if proven, constitute the only legal basis upon which the Court could grant the relief that plaintiff seeks. Paragraph 11 of the complaint alleges that defendant’s decision was unsupported by substantial evidence, was arbitrary and capricious, and was contrary to law. Remaining are cross motions for summary judgment pursuant to Fed.R.Civ.P. 56.

One who serves in any of the branches of the United States armed forces is to be issued one of five possible kinds of discharges at the termination (scheduled or unscheduled) of his period of service. It is mandatory “that the type of discharge ... reflect accurately the nature of service rendered.” Harmon v. Brucker, 355 U.S. 579, 583, 78 S.Ct. 433, 436, 2 L.Ed.2d 503 (1958). Ranging downwards from the discharge reflecting the most satisfactory character of service to that reflecting the least satis[212]*212factory, those discharges are: (1) Honorable, (2) General (or Under Honorable Conditions), (3) Other than Honorable (formerly known as Undesirable), (4) Bad Conduct, and (5) Dishonorable. See Lunding, “Judicial Review of Military Administrative Discharges,” 83 Yale L.J. 33 (1973).

The first three kinds of discharges are known collectively as “administrative discharges,” because the law permits them to be issued without a trial by court-martial. The latter two kinds of discharges are referred to as “punitive discharges,” and may only be issued after sentence imposed is by a general court-martial. See Stichman, “Developments in the Military Discharge Review Process,” 4 Military Law Reporter 6001, footnote 1 (1976).

Since the end of World War II, two different sets of administrative boards have existed within each military service that have the power, inter alia, to recharacterize an individual’s military discharge from a less favorable category to a more favorable one. One group of such bodies is the Discharge Review Boards (DRB’s), and these are made up of military officers. Their authority is generally set forth at 10 U.S.C. § 1553. The other group is the Boards for the Correction of Military Records (BCMR’s), which are made up of civilian employees of the respective military departments who have had past military service. Their authority is generally set forth at 10 U.S.C. § 1552.

Defendant contends in his motion for summary judgment there was substantial evidence supporting a declination to upgrade plaintiff’s discharge. Defendant quotes the opinion of the BCMR following reconsideration that “there is and was insufficient basis for issuance of a discharge based on unsuitability ... That the applicant repeatedly stabbed another soldier in the chest with a knife and therefore it appears that his military service is appropriately characterized by a dishonorable discharge.”

Defendant argues that while an alternative finding might be possible based on selective evidence, plaintiff has failed to show that the BCMR’s decision was not based on substantial evidence.

Plaintiff has opposed defendant’s motion and has filed his own motion for summary judgment.

Plaintiff’s main contention in this action, as well as in his BCMR reviews, is that at the time of plaintiff’s dishonorable discharge plaintiff was suffering from a preschizophrenic personality disorder. In support of this contention, plaintiff relies on a letter prepared for plaintiff's counsel by Dr. Edward Leader. This letter, dated July 17, 1980, reads as follows:

Dear Mr. Levin:
I have reviewed the records concerning Mr. Jimmy Lee Blackwell. He presents us with very important psychiatric, legal and social problems. The issue stems from the fact that in 1957, while serving in the U.S. Army, he was involved in a barracks fight in which he stabbed another soldier. He was convicted by a court martial and ultimately dishonorably discharged. Eight years later in 1965 he was first diagnosed as being psychotic and suffering from schizophrenia. Since that time he has been repeatedly hospitalized in psychiatric institutions with the diagnosis of schizophrenia. This poses the question as to whether Mr. Blackwell was suffering from undiagnosed schizophrenia at the time of the crime in 1957 and whether or not his mental status influenced his violent behavior at that time.
Experts in the study of schizophrenia believe that this severe form of mental illness generally begins insidiously and is present in some form or other at least as early as adolescence. This does not mean that it could be easily diagnosed as schizophrenia in the prepsychotic stages of the disease. In the leading American textbook on schizophrenia, Interpretation of Schizophrenia (1974), by Silvano Arieti, M.D., the author states that before the obvious symptoms of schizophrenia appear, that is a flattened affect, disordered cognitive associations, delusions, hallucinations, etc., the person usu[213]*213ally exhibits one of two prepsychotic personality types. These are the schizoid personality, a particularly quiet, withdrawn type of personality, and, secondly, the stormy personality, an impulsive, chaotic and sometimes violent type of personality.

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Related

Strang v. Marsh
602 F. Supp. 1565 (D. Rhode Island, 1985)

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Bluebook (online)
574 F. Supp. 210, 1982 U.S. Dist. LEXIS 10290, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blackwell-v-marsh-gand-1982.