United States District Court, E.D. Virginia, Richmond Division
PAUL J. PLOFCHAN JR., Plaintiff
ERIC K. FANNING, AS THE SECRETARY OF THE ARMY, AND THOMAS C. SEAMANDS, AS THE COMMANDER, U.S. ARMY HUMAN RESOURCES COMMAND, Defendants.
O'Grady United States District Judge
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.
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.
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)).
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.
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
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
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.
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.
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  that he is likely to succeed on
the merits,  that he is likely to suffer irreparable harm
in the absence of preliminary relief,  that the balance of
equities tips in his favor, and  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 ...