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Downey v. United States Department of Army

United States District Court, E.D. Virginia, Alexandria Division

June 19, 2015

UNITED STATES DEPARTMENT OF THE ARMY, and JOHN M. McHUGH, Secretary of the United States Department of the Army, Defendants.


LEONIE M. BRINKEMA, District Judge.

Following an incident that occurred during a military ball in April 2012, plaintiff Lieutenant Colonel Christopher P. Downey ("Downey" or "plaintiff") was charged with three violations of the Uniform Code of Military Justice ("UCMJ"). Downey's superior officer, two-star Major General Mark Milley ("Milley"), held an administrative hearing known as an "Article 15, " after which he found Downey guilty of one of the three charges-assault consummated by a battery. The only punishment Downey received as a direct result of this finding of guilt was that the record of the Article 15 was placed in the restricted section of his personnel file. He also experienced certain adverse administrative actions affecting his career in the Army.

After an unsuccessful intermediate appeal, Downey appealed his Article 15 to the Army Board for Correction of Military Records ("ABCMR" or the "Board"), which denied his appeal. Downey filed the instant four-count action challenging the ABCMR's decision; the Article 15 proceeding; and various regulations, policies, and procedures of the defendants. The parties have filed cross-motions for summary judgment on Counts I and II, and defendants have filed a motion to dismiss Counts III and IV. The motions have been fully briefed and oral argument has been held. For the reasons that follow, defendants' motions will be granted and plaintiff's motion will be denied.


A. Factual Background[1]

On April 14, 2012, a formal squadron ball was held on the base of Fort Drum, New York. AR 330. At that time, Downey was serving as the commander of the 6th Squadron, 6th Calvary, 10th Combat Aviation Brigade at Fort Drum, AR 330, 336, and was the commanding officer at the ball, AR 91. Between roughly 11:00 p.m. and midnight, Chief Warrant Officer Aaron Simbro ("Simbro") alerted Downey to what he thought appeared to be a crowd gathering around the dance floor and photographing a lesbian couple, Captain Katherine Robinson ("Robinson") and Second Lieutenant Heather Parsons ("Parsons"), who were dancing and possibly engaging in an inappropriate public display of affection. AR 218, 330. Downey quickly made his way towards the couple and, in the process, he reached out and open-handedly attempted to push down the cameras of two soldiers in his path whom he thought were photographing the couple. AR 218, 330-31, 414, 611. One of those individuals, Specialist Jeremy Reuter ("Reuter"), was sufficiently pushed off balance from the force of Downey's thrust to wind up lying prone on the floor. AR 218, 224, 330-31. It is undisputed that Reuter's nose was cut when the camera hit his face. AR 415, 611. Downey's intention in attempting to push down the cameras had been to stop any further photographing of the couple. AR 218, 333, 611. After his impact with Reuter, Downey reached the lesbian couple and briefly told them to alter their behavior. AR 218, 332. He then stepped off the dance floor without waiting to determine whether his order had been followed and began explaining the situation to Captain Thomas Jones, who had witnessed the incident and asked what happened. AR 331-32. After Downey explained that he thought Reuter had been taking inappropriate pictures of Robinson and Parsons, Jones immediately retrieved Reuter's camera and reviewed the last 20 to 30 photographs; however, he found none of them captured inappropriate conduct and most of them were actually of Jones and his wife, Captain Samantha Jones, as they had asked Reuter to photograph them as they were dancing. AR 225, 331.

By this time, Captain Samantha Jones and some others had moved Reuter outside of the hall where they observed his nose starting to swell. AR 225, 331, 415-16, 611. Downey left the hall and met Reuter and the others, apologizing to Reuter and explaining that he had not intended to injure Reuter; rather, he had only meant to prevent potentially inappropriate photographs of Robinson and Parsons from being published on social media without their permission. AR 331. Afterwards, Reuter was taken to the emergency room, where he was preliminarily diagnosed with a fractured nose and a concussion. AR 331, 409-10. He was released and returned home around 4:30 a.m. AR 331.

Shortly after Downey left the ballroom, an altercation arose on the dance floor between Robinson and Command Sergeant Major Patrick McGuire ("McGuire"). AR 332. According to Robinson and Parsons, McGuire called Robinson an "abomination, " stated that their actions were against regulations, and referenced the Don't Ask, Don't Tell policy ("DADT"). Id . Robinson responded that DADT had been repealed months earlier, in September. AR 373. Their heated exchange escalated until finally McGuire shoved Robinson with enough force to move her backwards and to make an audible "thump" when his hands made contact with her body. AR 332, 334.

After apologizing to Reuter, Downey returned to the ballroom to check on Robinson and Parsons, but neither of them mentioned the altercation with McGuire. AR 611. Downey found out about that altercation the following day. AR 333, 611. Between his arrival at the ball at 5:00 p.m. and the beginning of the relevant events around 11:00 p.m., Downey had consumed six alcoholic beverages. AR 219, 611. Reuter had also consumed five or six alcoholic drinks by the time the incident with Downey occurred. AR 404-05.

B. Article 15 Investigation, Charges, and Hearing

Four days after the events at the ball, on April 18, 2012, Downey's superior officer, Milley, appointed Colonel Paul Schlimm ("Schlimm") to investigate what happened at the ball. AR 330, 336. On April 23, Milley suspended Downey from duty and issued a "no contact" order preventing him from having any contact with members of his unit. Am. Compl. ¶ 91. Schlimm conducted an extensive investigation during which he obtained the sworn testimony or statements of 34 witnesses to the events at the ball, including statements from Downey, Reuter, Robinson, Parsons, and Simbro. AR 309-14, 332. Schlimm also interviewed all the wait staff on duty during the ball, although none saw the incident at issue. AR 523-24. In addition to investigating the incident between Downey and Reuter, Schlimm also inquired into the subsequent incident between McGuire and Robinson, as well as the alcohol situation at the ball and the implementation of DADT in Downey's unit. AR 332, 334-36. Among the hundreds of pages of documentation gathered by Schlimm during his investigation, see AR 309-629, was the preliminary diagnosis that Reuter had suffered a concussion and fractured nose, which was reflected on his "After Care Instructions" from the hospital, AR 409-11. These instructions summarized the symptoms typically associated with such injuries; advised on how to manage those symptoms, including using ice to reduce nasal swelling; directed Reuter to follow up with his unit's physician assistant, Justin Overholt, on Monday, April 16, 2012; and explained that Reuter would be notified if the radiologist's final report on Reuter's x-rays differed significantly from the preliminary report and diagnosis. AR 410.

After completing his investigation, Schlimm presented his report to Milley on May 4, 2012, recommending, among other things, that Downey "receive an Article 15 for the offense of assault consummated by a battery and be relieved from command." AR 336. A deputy staff judge advocate reviewed Schlimm's investigation report and found that "the Report complies with legal requirements, the evidence supports the findings and the recommendations are consistent with the findings. The Report is legally sufficient." AR 337.

Downey was advised that Milley was considering whether Downey should receive punishment for three offenses: (1) assault consummated by a battery, (2) disorderly conduct, and (3) obstruction of justice.[2] AR 59. The same form advising him of these charges, the DA Form 2627, [3] also advised him of his rights under an Article 15 proceeding and his "right to demand trial by court-martial" if he did not want the charges disposed of under Article 15.[4] AR 59. An Article 15 proceeding is a non-adversarial, summary proceeding at which a commanding officer may impose discipline on his subordinates "for minor offenses without the intervention of a court-martial." 10 U.S.C. § 815(b). Because the proceeding, by design, offers soldiers only minimal procedural protections, the UCMJ grants all service-members the option to refuse an Article 15 proceeding and to demand an adversarial court-martial, which offers a much fuller range of protections but also carries the risk of much more severe punishments. Due to the consequences of choosing to waive court-martial protections, a soldier is entitled to consult with counsel, free of charge, before making the decision. Fairchild v. Lehman, 814 F.2d 1555 (Fed. Cir. 1987). Downey-who was himself authorized to administer Article 15 non-judicial punishment to his own subordinates-was given this choice and counseled on this choice by an attorney provided free of charge by the Army. After consulting with counsel, Downey elected to accept the Article 15 proceeding.[5]

The Article 15 hearing took place on May 30, 2012. Am. Compl. ¶ 151. Because a non-judicial proceeding is non-adversarial, a soldier does not have a right to counsel during the proceeding, cf. Middendorf v. Henry, 425 U.S. 25, 40, 45-48 (1976); however, a soldier does have the right to bring a spokesperson-who, at the soldier's option, may be an attorney-to the Article 15 proceeding. Army Reg. 27-10 ¶ 3-18(h) (Oct. 3, 2011). Here, Downey's military attorney, who had counseled him during the waiver phase, allegedly informed Downey that although she could act as his spokesperson, it would make him "appear weak." Am. Compl. ¶ 150. She allegedly also told Downey that she had spoken with the Command Staff Judge Advocate and he informed her that the hearing would merely be a "commanders' conversation." Id . Accordingly, Downey chose to proceed in the Article 15 hearing without a spokesperson.

Non-judicial proceedings are conducted largely at the direction of the imposing commander who determines, for example, whether the soldier or the spokesperson may examine or cross-examine witnesses and what witnesses are reasonably available for the proceeding. Army Reg. 27-10 ¶ 3-18(h) (Oct. 3, 2011). Formal rules of evidence do not apply, and the commander may consider any evidence he reasonably believes to be relevant to the charges at issue. Id . ¶ 3-18(j). After considering all of the evidence, the commander may only find the soldier guilty if he is convinced beyond a reasonable doubt that the soldier committed the offense charged. Id . ¶ 3-18( l ).

Following a five-hour hearing, Milley adjudicated Downey guilty of assault consummated by a battery but sentenced him to no punishment. Am. Compl. ¶ 151; AR 59-60. Pursuant to Army regulations, a copy of the Article 15 record was placed in Downey's military personnel file, but only in the restricted section. Army Reg. 27-10 ¶ 3-37 (Oct. 3, 2011). The disorderly conduct charge was dismissed and Downey was found not guilty of obstruction of justice. AR 59. Through counsel, [6] Downey appealed that decision to the next superior authority, the Army Forces Command ("FORSCOM"), which denied his appeal on June 29, 2012, after a reviewing judge advocate found that the "proceedings were conducted in accordance with law and regulation and the punishments imposed were not unjust nor disproportionate to the offense committed." AR 60.

C. Collateral Consequences

On June 4, 2012, the same day the Article 15 decision was issued, Milley imposed an administrative reprimand (General Officer Memorandum of Reprimand or "GOMOR") on Downey for violating the repeal of DADT by "wrongfully and unfairly singl[ing] out a same sex couple for kissing and dancing together at the Squadron Ball." AR 12.

Also on June 4, 2012, Milley relieved Downey of his command pursuant to the regulation permitting such decisions when a superior commander "loses confidence in a subordinate commander's ability to command due to misconduct, poor judgment, the subordinate's ability to complete assigned duties, or for other similar reasons [including the performance of an informal investigation under Army Reg. 15-6]." Army Reg. 600-20 ¶ 2-17 (Mar. 18, 2008).[7] When an officer is relieved from command for cause, [8] the relieved officer's supervisors must prepare a "relief for cause" Officer Evaluation Report ("OER"). Army Reg. 623-3 ¶ 3-58 (Aug. 10, 2007). Completed OERs are placed in the performance section of the officer's personnel file. Army Reg. XXX-X-XXX, Table 3-1 (Apr. 7, 2014). After the OER is posted to a soldier's file, it is presumed to be administratively correct and to represent the "considered opinion and objective judgment of the rating officials at the time of preparation." Army Reg. 623-3 ¶ 3-39(a) (Aug. 10, 2007). A soldier may appeal any report that he believes to be inaccurate or prepared in violation of regulations. Id . ¶ 6-7(c). If an officer seeks to appeal an adverse OER, he must file that appeal with the appropriate Army Special Review Board ("ASRB"). Id . ¶¶ 6-7(i), 6-12. Only after a soldier submits an unsuccessful appeal to the ASRB may he then apply to the ABCMR to correct the allegedly incorrect OER. Id . ¶ 6-9(f). In Downey's case, his relief for cause OER covered his performance from October 2011 through June 2012. In his OER, Milley wrote:

LTC Chris Downey was relieved for cause of his Squadron Command due to a terrible mistake in judgement [sic] he made during a unit social event which resulted in my loss of confidence in him as a commander. Although a very severe lapse in judgement [sic] by Chris, I firmly believe this was a one-time mistake on his part and he is an otherwise quality officer who still retains potential for continued service to our Army.... Although I relieved Chris, there is no doubt in my mind that he is a fully qualified officer and should retain his rank of [Lieutenant Colonel] and continue contributing to our Army.

AR 6 (signed by Milley in August 2012).

On July 19, 2012, an administrative elimination board was convened to determine whether Downey should be separated from the Army based on the derogatory activity reported in his relief for cause OER. AR 40-44. That board found that the allegations of derogatory activity and of conduct unbecoming an officer were not supported by a preponderance of the evidence. AR 44. Accordingly, the board recommended that Downey be retained on active duty, a decision consistent with Milley's conclusion. AR 44, ...

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