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Plofchan v. Fanning

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

June 29, 2016



          Liam O'Grady United States District Judge

         This matter comes before the Court on a Motion for Temporary Restraining Order ("TRO") filed by Plaintiff Paul Plofchan Jr. Dkt. No. 3. Plaintiff is a probationary officer and a 1st Lieutenant in the U.S. Army 101st Airborne Division. Plaintiff seeks to enjoin the Army from involuntary eliminating him.

         I. Background

         A. Regulatory Background

         The Army's regulations governing the discharge of officers is contained in Army Regulation 600-8-24. These regulations list a number of reasons for which the Army may discharge an officer. Id., ¶ 4-2. If an army official initiates an elimination action against a probationary officer, like Plofchan, he must first notify "the implicated officer in writing that elimination action has been initiated and that he or she is required to show cause for retention." Id. ¶¶ 4-20, 21. The initiating official "advises the officer of the reasons supporting the elimination action and the factual allegations supporting the reasons." Id. The initiating official must also "advise the officer of the least favorable discharge or characterization that he or she may receive, " and "advise the officer that he or she has 30 calendar days to acknowledge in writing, to prepare a written statement of rebuttal, and/or elect" to resign, request discharge, or apply for retirement. Id. "If an Honorable ... discharge is recommended there will be no Board of Injury, unless directed-----" Id. After receipt of the officer's written rebuttal, the initiating official reviews the relevant material and determines whether to officially recommend the officer's separation from the Army. Id. If elimination is recommended, the file with all of the relevant material is forwarded to the Commanding General of the HRC. Id. HRC then forwards the case to the Deputy Assistant Secretary of the Army who makes a final decision on behalf of the Secretary of the Army. Id.

         If the Deputy Assistant Secretary decides in favor of the officer's separation, the officer may seek review of the decision from the Army Discharge Review Board ("ADRB"). The ADRB does not have authority to reverse or vacate a discharge, but may, subject to review by the Secretary of the Army, change the characterization of service and/or the reason for discharge. See 10 U.S.C. § 1553; 32 C.F.R. § 581.2. The officer may also seek review from the Army Board for the Correction of Military Records ("ABCMR"), which has authority to "correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error or remove an injustice." 10 U.S.C.A. § 1552(a)(1). The ABCMR also "may, subject to review by the Secretary concerned, change a discharge or dismissal, or issue a new discharge, to reflect its findings." 10 U.S.C.A. § 1553(b); Guerra v. Scruggs, 942 F.2d 270, 273 (4th Cir. 1991). Decisions of the ABCMR are subject to judicial review and "can be set aside only 'if they are arbitrary, capricious or not based on substantial evidence.'" Randall v. United States, 95 F.3d 339, 348 (4th Or. 1996); (quoting Chappell v. Wallace, 462 U.S. 296, 303, 103 S.Ct. 2362, 2367, 76 L.Ed.2d 586 (1983)).

         B. Factual Background

         Plofchan asserts that in May of 2015 he was illegally stopped, assaulted, and arrested by Vanderbilt University Police Department officers in Nashville, Tennessee. The officers arrested Plofchan and charged him with public intoxication, resisting arrest, and assault against a police officer. Subsequently, all charges were dropped against Plofchan. However, Plofchan's commanding officer Colonel Kyle J. Marsh recommended that Major General Volesky reprimand Plofchan based on this event. General Volesky issued an administrative reprimand against Plofchan on August 19, 2015, and indicated that he was considering filing the reprimand in Plofchan's Official Military Performance File ("OMPF"). Plofchan maintains that General Volesky conducted no investigation into the accusations made against him. Pflofchan filed a rebuttal memorandum and a supplemental memorandum to his rebuttal.

         Thereafter, three officers were tasked with reviewing the documents relating to Plofchan's arrest and his military record. Captain Brandon Lapehin and Lieutenant Colonel Bryan Schoot reviewed the Reprimand and recommended filing it in Plofchan's local file. Colonel Marsh recommended filing the Reprimand in Plofchan's OMPF. General Volesky ultimately decided to file the Reprimand in Plofchan's OMPF.

         On November 12, 2015, General Volesky also decided to initiate an elimination action against Plofchan. With the assistance of counsel, Plofchan filed a memorandum in rebuttal to the elimination action on December 12, 2015. On February 10, 2016, General Volesky recommended that Plofchan be eliminated from service and receive an honorable characterization of service. Upon this recommendation, Plofchan's file was sent to the U.S. Army Human Resources Command in Alexandria ("HRC-Alexandria").

         On March 10, 2016, Brigadier General Scott Brower dismissed the elimination action because the wrong procedures had been used. However, that same day, Brower initiated a new elimination action using the proper procedures. On April 12, 2016, Plofchan, with the assistance of counsel, filed a memorandum in response to the elimination action. On May 4, 2016, Brower recommended that Plofchan be eliminated from the Army and the recommendation was forwarded to HRC-Alexandria for final review and approval. Plofchan has not yet been eliminated. Before he can be separated, the Secretary of the Army, acting through the Deputy Assistant Secretary of the Army, must approve the separation recommendation.

         While Brigadier General Bower's recommendation was pending, Plofchan filed this lawsuit on May 18, 2016. With this action, Plofchan asks the Court to halt the administrative processing of the elimination action, dismiss the elimination action, and enjoin the Army from engaging in future elimination actions based on the dropped criminal charges. On June 9, 2016, Plofchan filed the currently pending TRO. The Court set the Motion for hearing on June 24, 2016, and required Plofchan to notify the government of the hearing. After notification, the government filed a memorandum in opposition and appeared at the hearing. Plofchan also filed a reply brief shortly before the hearing, which the Court had time to consider before rendering a decision.

         II. Legal Standard

         "The standard for granting either a TRO or a preliminary injunction is the same." Moore v.Kempthorne,464 F.Supp.2d 519, 525 (E.D. Va. 2006) (citations omitted). "A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest." Winter v. Natural Res. Def Counsel,555 U.S. 7, 20 (2008); see also Real Truth About Obama, Inc. v. Fed. Election Comm %575 F.3d 342, 346 (4th Cir. 2009) (citing Winter, 129 S.Ct. at 374), vacated on other grounds,130 S.Ct. 2371 (2010), reinstated in relevant ...

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