A federal judge from the District of New Jersey has denied a motion for summary judgment brought by the U.S. Government, which sought to prevent a former cadet and student-athlete on the Army football team from receiving his degree, despite the favorable decision the plaintiff received from the Army Board for the Correction of Military Records (ABCMR).
In so ruling, the court wrote that a “trier of fact in this case could determine that the Secretary’s deviation from the ABCMR’s decision was against substantial evidence and thus arbitrary. The evidence in support of the Board’s decision is compelling.”
The plaintiff in the case was Bradford R. Waudby, who on June 29, 2000 entered the United States Military Academy. The plaintiff was a member of the football team from November 21, 2000 to July 7, 2004; though his football career was effectively over after the last game of the 2003 football season. The court noted that “the demands of Plaintiff’s position on the football team required that he maintain an unusually large amount of muscle and body fat compared to other students at USMA. This physique made it more difficult for the plaintiff to successfully complete the standard Army Physical Fitness Test (APFT), which was administered to all USMA students periodically as part of their training.”
A standard APFT has three sections: push-ups, sit-ups, and a two-mile run. The number of push-ups and sit-ups and the time allotted for the run depend on the gender and age of the examinee and are contained in the Army Field Manual.
The plaintiff failed his first post-football APFT. Specifically, he passed the push-up and sit-up portions of the APFT, but failed the two-mile run by two minutes and 18 seconds (The maximum allowed time was 16 minutes and 36 seconds.) Consequently, the plaintiff did not graduate with his class.
In August 2004, the plaintiff re-took the APFT and was permitted to use a pace man. But he failed the test again, missing his time by a minute and 59 seconds. On August 30, 2004, the Superintendent of the USMA approved a recommendation to retain Plaintiff at the USMA for one more semester in order to pass the APFT.
After the August test, he was enrolled in a class by the Department of Physical Education (DPE), which required him to run, bike and swim in every class, with classes meeting three times per week. The plaintiff also tried to participate in the Commandant’s Physical Remediation Program (CPRP), which would have allowed him to increase his physical training, but his request was denied. So instead, he began training with a former Special Forces team leader, who volunteered his help after hearing about the plaintiff’s prior failures. This resulted in “substantial progress,” according to the court, including running a time that would have satisfied APFT requirements. But after a month and a half of training, the plaintiff developed heart problems, which prevented him from exercising for several weeks. When he was medically cleared to return to his exercise regimen, he was instructed by DPE and superiors to no longer work out with the trainer.
On December 6, 2004, the plaintiff took the APFT again. He passed the push-up and sit-up events. He had made arrangements for his company tactical officer to run as his pace man, a request that was denied. “At every other APFT, the plaintiff was allowed a pace man,” wrote the court. “Furthermore, a pace man was allowed pursuant to Department of the Army regulations. (Army Field Manual).”
The plaintiff failed the two-mile run by 51 seconds.
On December 28, 2004, the Superintendent of the USMA recommended that the plaintiff be “separated from the school, denied the Bachelor of Science degree, discharged from the United States Army and that action be taken to recover from Plaintiff the costs of his USMA education.” On July 1, 2005, he was honorably discharged and the United States Army directed recoupment. On July 25, 2005, the USMA Academic Board awarded Plaintiff a certificate of completion of the academic program in lieu of a degree.
The plaintiff applied to the ABCMR to have his record changed, and the board unanimously granted his application in full and found that the “evidence clearly shows that the applicant successfully completed all of the academic requirements for award of the Bachelor of Science Degree.” Further, the ABCMR panel unanimously granted the plaintiff full relief, including altering his record to show that he passed the APFT in December 2004; the secretary approved a recommendation from the USMA Academic Board for an award of a diploma without commissioning; he graduated as part of the December 2004 class and was awarded a Bachelor of Science Degree; and he was honorably discharged on April 8, 2005 upon a recommendation from the USMA, with a new finding that “it had not been due to a volitional act of misconduct and that no action would be taken to recoup the cost of his education.”
The office of the Secretary of the Army, however, was not pleased. On November 20, 2008, the Assistant Secretary of the Army, Pete Geren, issued a memorandum to the director of the Army Review Boards Agency, on behalf of the Secretary, “refusing to accept the full determinations of the ABCMR. The Secretary ordered that the recoupment action against the plaintiff for the cost of his education be halted. However, the Secretary modified the ABCMR’s decision and refused to grant the plaintiff his diploma. Instead the Secretary ordered that only if the plaintiff successfully re-applied for admission to the USMA, and then successfully completed the Physical Program, would he receive his degree and be commissioned as a Second-Lieutenant.”
The plaintiff sued, pursuant to 5 U.S.C. § 701 et seq. and 28 U.S.C. § 1361, alleging, among other things, that the Secretary’s decision to overturn the ACBMR was arbitrary and capricious. The Government countered with a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b) or in the alternative, for summary judgment pursuant to Fed. R. Civ. P. 56.
The court went on to explore at what point the Secretary could overrule a decision by the board. As mentioned above, the court found that “Secretary’s deviation from the ABCMR’s decision was against substantial evidence and thus arbitrary.”
The court then detailed the evidence, supporting the ACBMR’s decision:
“1. Plaintiff requested that the 3-day per week CPRP class meet every week. His request was denied.
2. Plaintiff began wearing a plastic jacket under his gym clothes to facilitate faster weight loss (a practice he successfully engaged in during high school to make weight for wrestling). Once discovered, the plastic jacket was confiscated.
3. Plaintiff began a long distance running program with one of his instructors. Under the instructor’s supervision, Plaintiff passed the two-mile point (on his uphill runs) 20 seconds faster than was required for the two-mile segment of the APFT. Despite his progress, Plaintiff was ultimately reprimanded and prohibited from continuing this running regimen.
4. Plaintiff enrolled in an aerobics and swimming classes to strengthen his endurance. Plaintiff was told he could only follow the DPE program.
5. Plaintiff was denied a pace man for his last two-mile run; a denial that was inconsistent with Army Regulations. Had he been allowed a pace man, the evidence suggests that Plaintiff would have completed the run section of the APFT.”
The Secretary had questioned “the sincerity and intensity” of the plaintiff’s efforts to pass the APFT. But the court found that the Secretary’s “choice of language indicates that he disregarded the ABCMR’s finding of fact merely because he disagreed with it, not because it was unsupported by evidence.”
Bradford R. Waudby, Jr. v. United States of America et al.; D.N.J.; Civil Action No. 2:09-cv-1167 (SDW-MCA); 2010 U.S. Dist. LEXIS 4723; 1/19/10
Attorneys of Record: (for plaintiff) Frederick W. Klepp, Cherry Hill, NJ. (for defendants) Daniel J. Gibbons, Office of The United States Attorney, Newark, NJ.
