Petway v. United States

28 Fed. Cl. 711, 1993 U.S. Claims LEXIS 103, 1993 WL 286309
CourtUnited States Court of Federal Claims
DecidedJuly 30, 1993
DocketNo. 92-104C
StatusPublished
Cited by2 cases

This text of 28 Fed. Cl. 711 (Petway v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Petway v. United States, 28 Fed. Cl. 711, 1993 U.S. Claims LEXIS 103, 1993 WL 286309 (uscfc 1993).

Opinion

ORDER

TIDWELL, Judge:

This ease is before the court on defendant’s motion for summary judgment. For the reasons set forth below, the court grants defendant’s motion.

I. FACTS

Plaintiff entered the United States Army on October 3, 1968, and served continuously on active duty until February 15, 1986. On March 20, 1985, plaintiff participated in a random unit urinalysis screening. On March 21, 1985, the custody officer discovered that plaintiff’s specimen bottle was not sealed according to Army regulations. Specifically, the seal plaintiff placed over the top of the bottle touched the identification label on the side of the bottle. Consequently, the custody officer ordered plain[713]*713tiff to remove the old seal and place a new seal on the bottle. Plaintiff then properly resealed the bottle in front of the custody officer.

Plaintiffs urine specimen tested positive for tetrahydrocannabinol (THC) on April 11, 1985, indicating plaintiff had recently used marijuana or a similar substance. As a result, on May 31,1985, plaintiff’s company commander, Captain Stormer, referred plaintiff to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) and ordered a second urinalysis. That same day, plaintiff submitted a second urine specimen and enrolled in the ADAPCP. The second specimen also tested positive for THC. While enrolled in the ADAPCP, plaintiff submitted three additional urine samples that tested positive for THC (twice in June and once in August).

On June 28, 1985, plaintiff’s battalion commander offered plaintiff an Article 151 for using marijuana in violation of Article 112a of the Uniform Code of Military Justice. 10 U.SU.A. § 912a (West Supp.1984). Plaintiff waived his right to a court martial and accepted the Article 15. The resulting punishment, which was suspended, was a reduction in one grade from E6 to E5. Plaintiff appealed the grade reduction to his brigade commander who denied the appeal on July 20, 1985.

On August 5, 1985, Captain Stormer advised plaintiff that he was being recommended for separation under Army Regulation (AR) 635-200, Chapter 14.2 This recommendation was based upon the finding of THC in the urine sample submitted on March 20, 1985. On August 6, 1985, plaintiff requested a separation board to consider his case. The four member separation board convened on December 2, 1985. One of the members was Captain James P. Mo-nagle who allegedly became plaintiff’s company commander at some point after the administrative hearing but before plaintiff’s discharge.

At the hearing, Captain Stormer testified that plaintiff had been given every opportunity at rehabilitation, but that he continued to abuse drugs. Confirming Captain Stormer’s testimony, the clinical director for the local rehabilitation program testified that plaintiff lacked the proper motivation, was still in denial, and therefore had a poor prognosis for rehabilitation. Additionally, sworn statements by two other counselors who worked with plaintiff substantiated the director’s testimony. Further, plaintiff testified: “After I was identified through the unit sweep I continued to use [marijuana] even though I was aware of the consequences.” Plaintiff also admitted using marijuana “one time” between May 31, 1985 and August 16, 1985, while enrolled in the ADAPCP.

On December 4, 1985, the Board found that plaintiff: (1) abused marijuana between March to August 1985; (2) abused drugs more than once while enrolled in the ADAPCP; (3) showed little interest in being rehabilitated while enrolled in the rehabilitation program; and (4) should not be retained because retention would contradict the good order and discipline of the Army. The Board then recommended that plaintiff be separated from the Army with an honorable discharge. The separating authority accepted the Board’s recommendation on January 31, 1985, and plaintiff was honorably discharged on February 15, 1985.

In February 1986, plaintiff petitioned the Army Board for Correction of Military Records (ABCMR) requesting removal of the Article 15 proceeding from his records and restoration of all entitlements denied by that action. Plaintiff’s request was based upon the theory that the March 20, 1985 urine sample constituted invalid evidence, since the sample had to be resealed. On [714]*714July 6, 1988, the ABCMR reviewed the record and determined that plaintiff’s evidence was insufficient to overturn the findings of either the Article 15 proceeding or the separation board.

Plaintiff filed suit in this court on February 12, 1992. In his complaint, plaintiff claimed that: (1) the March 20, 1985 urine sample was mishandled in violation of Army regulations and was therefore, improper evidence of drug abuse; (2) Captain Monagle was a biased member of plaintiff’s separation board in violation of AR 635-200, ch. 2, § III, para. 2-7b (1984);3 and (3) mandatory processing for separation, under AR 635-200, ch. 14, § III, para. 14-12d(l) (1984), deprived plaintiff of his constitutional right to due process. Plaintiff did not present claims two and three to the ABCMR. As a result, defendant moved for, and was granted, a stay so the ABCMR could review these new claims.

During the ABCMR’s reconsideration, the government presented a declaration written by Captain Monagle. The declaration stated that Captain Monagle was unaware of his future position during any of the proceedings. Additionally, Captain Mo-nagle’s declaration presented specific reasons why he recommended plaintiff’s separation. Plaintiff submitted evidence into the record which indicated that Captain Mo-nagle may have been plaintiff’s company commander at the time of his separation. On March 24, 1993, the ABCMR determined that there was insufficient proof of bias to overturn the separation board’s findings. In its motion in summary judgment, defendant argued that the ABCMR’s findings on plaintiff’s claims were not arbitrary, capricious, or contrary to law or regulation.

II. DISCUSSION

Summary judgment is appropriate when there is no genuine issue as to any material fact and “the moving party is entitled to a judgment as a matter of law.” RCFC 56(c). A fact becomes material when it “could make a difference in the outcome of a case.” Young Enterprises, Inc. v. United States, 26 Cl.Ct. 858, 863 (1992) (citations omitted). In order to show that a material fact is genuinely at issue, the non-movant must introduce more than “some” evidence on the disputed issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50, 106 S.Ct. 2505, 2509-11, 91 L.Ed.2d 202 (1986); Chevron U.S.A., Inc. v. United States, 17 Cl.Ct. 537, 540 (1989), rev’d on other grounds, 923 F.2d 830 (Fed.Cir.1991). As the Supreme Court stated, “[tjhere is no issue for trial unless there is sufficient evidence favoring the non[-]moving party for a [court] to return a verdict for that party. If the evidence [of the nonmovant] is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson 477 U.S. at 249-50, 106 S.Ct. at 2510-11 (citations omitted). “[When] the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

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Bluebook (online)
28 Fed. Cl. 711, 1993 U.S. Claims LEXIS 103, 1993 WL 286309, Counsel Stack Legal Research, https://law.counselstack.com/opinion/petway-v-united-states-uscfc-1993.