Kursar v. McHugh

CourtDistrict Court, District of Columbia
DecidedSeptember 24, 2024
DocketCivil Action No. 2010-1974
StatusPublished

This text of Kursar v. McHugh (Kursar v. McHugh) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kursar v. McHugh, (D.D.C. 2024).

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ALEXANDER KURSAR,

Plaintiff, Civil Action No. 10-1974 (LLA) v.

CHRISTINE WORMUTH,

Defendant.

MEMORANDUM OPINION

Plaintiff Alexander Kursar brought this action against the Secretary of the Army alleging

that the Army Board for Correction of Military Records (“ABCMR”) violated the Administrative

Procedure Act (“APA”), 5 U.S.C. § 701 et seq., in denying his request to correct his military

record. After two remands, during which Mr. Kursar secured certain relief, the case is back before

the court and the parties have filed cross-motions for summary judgment. ECF Nos. 37, 38. After

reviewing the parties’ motions, the administrative record (“AR”), and the relevant authorities, the

court will grant the Secretary’s cross-motion for summary judgment, ECF No. 38, and deny

Mr. Kursar’s motion for summary judgment, ECF No. 37.

I. Factual Background

Because this case has a long history, the court will focus on the facts relevant to the

ABCMR decision on review. In August 1981, Mr. Kursar enlisted with the United States Army

Reserve (“Reserves”) for a six-year term. AR 1636. In April 1982, he began a three-year term of

active-duty service and began training to become a medical specialist. Id. at 1630; ECF No. 29

¶ 18. By the early summer of 1983, he was in the process of completing the final phase of the Special Forces Qualification Course at the Institute for Military Assistance, with an expected

graduation date of July 26, 1983. ECF No. 29 ¶ 23”. On July 22, 1983, only a few days before

graduation, Mr. Kursar was discharged from active service based on hardship and transferred to

the Army Control Group. AR 1630. Mr. Kursar contends that he had requested this separation

due to a family emergency and that his company commander had informed him that the school

Commandant would ensure that he received credit for the course. Id. at 70.

Between 1987 and 1993, Mr. Kursar held positions within the Reserves. In 1994, he

applied for and was appointed as a Warrant Officer in the Washington National Guard as a Special

Forces Tech. Id. at 1570.

A. Special Forces Tab

In 1994, Mr. Kursar requested a retroactive award of a Special Forces (“SF”) Tab from the

U.S. Army John F. Kennedy Special Warfare Center and School (the “Special Warfare School”).

Id. at 1580. The Commander of the Special Warfare School may award the SF Tab to any

individual who successfully completes the Special Forces Qualification Course. Id. at 76. In

support of his request, Mr. Kursar submitted a certificate indicating that he had graduated from the

Special Forces Qualification Course on July 26, 1983. Id. at 1580. The certificate, however, was

on a form dated June 1, 1986, and bore the signature of a Commandant who did not hold the

position in 1983 (when Mr. Kursar supposedly graduated). Id. at 83. In October 1994, the Special

Warfare School issued Permanent Order 124-1 awarding Mr. Kursar an SF Tab. Id. at 1569.

Then, in November 1995, the Special Warfare School issued Permanent Order 306-59,

which revoked both Permanent Order 124-1 and Mr. Kursar’s SF Tab. Id. at 1564. Once the SF

Tab was revoked, Mr. Kursar was no longer qualified to serve in any Special Forces role, including

the position he was then holding at the Washington National Guard. Id. at 86. In both August 1997

2 and April 2004, Mr. Kursar sought reinstatement of his SF Tab and claimed that it had been

mistakenly revoked due to administrative error. Id. at 70. The ABCMR denied his requests in

June 1999 and November 2004, respectively. Id.

B. Washington National Guard Discharge

In the same month that the Special Warfare School revoked his SF Tab, Mr. Kursar’s unit

at the Washington National Guard began investigating whether he had misrepresented his military

status to attend dive school the previous year. Id. at 82-84, 88. His unit eventually concluded that

he had lied about his SF status in order to attend dive school. Id. at 1385. But on November 14,

1995, before the investigation was completed, Mr. Kursar requested immediate release from the

Washington National Guard. While he acknowledged the pending investigation into his conduct,

he claimed that he needed to be released because of “conflicts arising with [his] civilian employer

over military leave for training and drills.” Id. at 1380. Two months later, in a letter dated

January 11, 1996, he again acknowledged the investigation regarding his attendance at dive school

and asked that he be allowed to resign. Id. at 1382. In July 1996, Mr. Kursar received a General,

Under Honorable Conditions, Discharge from the Washington National Guard and received a NGB

Form 22 reflecting the same.1 Id. at 1387-88.

C. Reenlistments

Less than a year later, in January 1997, Mr. Kursar reenlisted in the Reserves as a Staff

Sergeant. Id. at 1550. He presented himself as an honorably discharged, SF-qualified soldier. Id.

at 86. In August 1997, he was reassigned from the Army Reserve Control Group to the California

National Guard. Id. at 1360. About a month later, the California National Guard discharged him

1 A “General, Under Honorable Conditions, Discharge” is distinct from an “Honorable Discharge.” 3 from the Guard and Reserves, issuing him an NGB Form 22 with a General, Under Honorable

Conditions, Discharge, and a reentry (“RE”) code of (3). Id. at 1548.2 The California National

Guard Personnel Security Clearance Specialist explained to the California National Guard that

Mr. Kursar “was going to be processed for fraudulent enlistment because he held a previous

discharge which would have made him ineligible for enlistment.” Id. at 1442.

Almost three years later, in April 2000, the California Office of the Adjutant General

revoked the order discharging Mr. Kursar from the California National Guard and issued a new

order again discharging him from the California National Guard with General, Under Honorable

Conditions. Id. at 1546-47. This new discharge order assigned him to the Army Reserve Control

Group, but still carried a RE-code of (3). Id.

In July 2000, Mr. Kursar reenlisted in the Reserves. Id. at 1536. In January 2003, the

Reserves initiated a “flag” on his personnel file for potentially fraudulent enlistment.3 Id. at 87.

A few months later, in August 2003, the Army Reserve Personnel Command informed Mr. Kursar

of its intent to consider him for separation for fraudulent enlistment, stating that his 2000

enlistment had been fraudulent because his 1997 reenlistment had also been fraudulent. Id. at 688.

Then, in spring 2004, an Army Reserve Separation Board found that Mr. Kursar’s reenlistment

was defective and recommended that he receive an Other Than Honorable Discharge.4 Id. In

2 An RE-code of (3) prohibits the individual from future reenlistment. ECF No. 29 ¶ 135. 3 A flag, or DA Form 268, suspends all favorable personnel actions until it is lifted. AR 54-55. 4 Unlike a General Discharge, an Other Than Honorable Discharge prevents a former servicemember from accessing specific veterans’ benefits. Applying for Benefits and Your Character of Discharge, U.S. Dep’t of Veterans Affairs (Sept. 18, 2024), https://perma.cc/2XB5- GGPG. 4 May 2005, Mr.

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