Giglio v. United States

17 Cl. Ct. 160, 1989 U.S. Claims LEXIS 94, 1989 WL 59204
CourtUnited States Court of Claims
DecidedJune 2, 1989
DocketNo. 578-88C
StatusPublished
Cited by9 cases

This text of 17 Cl. Ct. 160 (Giglio v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Giglio v. United States, 17 Cl. Ct. 160, 1989 U.S. Claims LEXIS 94, 1989 WL 59204 (cc 1989).

Opinion

MEMORANDUM OPINION

LYDON, Senior Judge:

In this military pay case, plaintiff challenges her administrative discharge from the United States Air Force on procedural, constitutional and public policy grounds. Defendant asserts that plaintiff’s discharge was in accord with applicable regulations, supported by substantial evidence and not contrary to law. Defendant has moved to dismiss plaintiff’s complaint or, in the alternative, for summary judgment supporting its summary judgment motion with pertinent documentation. Plaintiff has opposed defendant’s motion to dismiss or, in the alternative, defendant’s motion for summary judgment on the ground that material issues of fact are in dispute. Upon consid[163]*163eration of the submissions of the parties, oral argument being deemed unnecessary, the court concludes that defendant’s motion for summary judgment should be granted.

I.

Plaintiff enlisted in the United States Air Force on February 6, 1969, and continued on active duty with the Air Force into 1984. In 1984, plaintiff was stationed at McConnell Air Force Base, Kansas, and was assigned to the then 381st Combat Support Group. At this time she was serving in the grade of staff sergeant. Plaintiff, as of 1984, was classified as an “Administration Technician,” and had, at the time of her discharge in September 1984, served in the Air Force for some fifteen years and seven months. As of September 1984, plaintiff had been stationed at McConnell Air Force Base for some three years, serving as an administrative clerk.

In February 1984, plaintiff was diagnosed as suffering from the following personality disorders: (1) Oppositional Explosive Disorder; (2) Isolated Explosive Disorder; and (3) Mixed Personality Disorder with Passive-Aggressive, Passive-Dependent and Immature Features. A mental health evaluation dated February 17, 1984, concluded that plaintiff’s ability to function in a military environment was significantly impaired due to her personality disorder. On May 9, 1984, plaintiff’s Commander recommended to the McConnell Air Force Base Commander that she be administratively discharged as a result of a personality disorder.1

A Board of Officers (BOA) also known as the “Administrative Discharge Board,” was convened, under AFR 39-10, at McConnell Air Force Base on June 20-22, 1984 to determine whether plaintiff should be retained on active duty or discharged because of her personality disorder.

Plaintiff was notified, in writing, of the date of the hearing to be held relative to the recommendation that she be discharged because of a personality disorder. She was provided with the names of the four witnesses to be presented by the Air Force. She was also advised that the BOA would endeavor to arrange for the presence of any military personnel witnesses she requested. She was also advised that she was entitled to be represented by civilian counsel of her choice, at her own expense, at the hearing, but that Captain Gerald J. Domitrovic, Assistant Judge Advocate Area Defense Counsel, had been detailed to represent her at the hearing at no cost to her. Plaintiff thereafter acknowledged receipt of the above notice and elected, in writing, to have Captain Domitrovic represent her at the hearing. She made no request that the Air Force arrange for the presence of any military personnel witnesses.

The BOA conducted a hearing on June 20-22, 1984. Plaintiff appeared before the BOA in person and was represented by Captain Domitrovic. The Government offered sixteen exhibits at the hearing and called four witnesses. The four witnesses were Captain Brian R. Campbell (Captain Campbell), a psychologist, Chief of Psychology Services and Mental Health at the United States Air Force Hospital at McConnell Air Force Base,2 Major Howard P. [164]*164Waller, previously a supervisor of plaintiff; Master Sergeant John H. Jones, plaintiffs First Sergeant; and Lieutenant Colonel Raymon D. Schellenger (Col. Schellenger), plaintiffs Commander. These witnesses testified under oath at the hearing. Plaintiff presented unsworn testimony to the BOA, offered fifteen exhibits at the hearing, and called two witnesses who gave sworn testimony. The two witnesses were Sgt. Tina J. Culleton, who worked with plaintiff from September 1983 — March 1984 while on assignment at the Boeing Air Craft facility; and Norman T. Shawver, an attorney who represented her since October 1983 in a child support matter against an ex-husband whom she divorced in 1981, and who also handled related divorce matters for her.

The BOA proceedings were reported and the record thereof was transcribed. The BOA prepared written findings of fact. The BOA found, inter alia, that plaintiff “does have a personality disorder,” and that the “personality disorder does significantly impair her ability to function in a military environment”, and “does interfere with her duty performance and conduct.” The BOA cited record evidence in support of these findings of fact. The BOA recommended that plaintiff, “because of a personality disorder,” be separated from the Air Force “with an honorable discharge,” with no probation or rehabilitation. It was felt plaintiff was not a suitable candidate for probation or rehabilitation because the numerous efforts made in the past to rehabilitate her were unsuccessful, and her diagnoses of a chronic and/or severe personality disorder indicated she was not likely to be cured of the same at any time in the near future.

The record of the BOA proceedings was thereafter subjected to a legal review by the Base Staff Judge Advocate, who found no administrative or legal irregularities therein. There is no evidence that any objections to the BOA proceedings were raised or filed with the BOA or the Staff Judge Advocate by plaintiff.

On September 5, 1984, the Base Commander directed that plaintiff be discharged from the Air Force under the provision of AFR 39-10, Chapter 5, Section B, para. 5 — 12i. Plaintiff was considered for probation and rehabilitation but this course of action was rejected based upon her multiple personality disorders which interfered with the military service. Plaintiff was separated from the Air Force on September 9, 1984. She was given an honorable discharge. At the time of her discharge, plaintiff had served three years, six months and twenty-four days of her four year enlistment which enlistment was to terminate on February 9, 1985. Since plaintiff had twelve years and three days of prior active duty service at time of discharge, her total period of active duty service at time of discharge was fifteen years, seven months and two days.

On May 19, 1986, plaintiff filed an application with the Air Force Board for the Correction of Military Records (AFBCMR) under the provisions of 10 U.S.C. § 1552 (1982). In her application, plaintiff requested that she be returned to active duty service in the Air Force since, she alleged, her honorable discharge resulted from error or injustice.

Plaintiff cited as error in the BOA proceedings her contention that Captain Campbell was not qualified to testify as an expert before a court martial or an adminis[165]

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Cite This Page — Counsel Stack

Bluebook (online)
17 Cl. Ct. 160, 1989 U.S. Claims LEXIS 94, 1989 WL 59204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/giglio-v-united-states-cc-1989.