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March 15, 2000


The opinion of the court was delivered by: John T. Curtin, District Judge.



Plaintiff Paul E. Crane alleges that defendant, the Secretary of the Army, violated the Administrative Procedure Act ("APA"), 5 U.S.C. § 551, and his constitutional right to due process by involuntarily dismissing him from the United States Army. Defendant moves to dismiss plaintiffs complaint. Plaintiff opposes and cross-moves for summary judgment. For the reasons set forth below, defendant's motion to dismiss is denied and plaintiffs motion is granted.


I. Background Facts

In May of 1980, Crane was commissioned as a Second Lieutenant in the United States Army. In the years that followed, he received numerous awards for his outstanding service and exemplary performance. He was promoted to Captain in 1984, and promoted to the rank of Major in 1992. Record ("R") at 164.

At every station where Major Crane served, he received commendation for excellent service. In 1983, he received the Army Commendation Medal for outstanding performance. R. 170. In 1984, he received the Army Achievement Medal for exceptional meritorious duty. R. 171. In 1987, he received the Meritorious Service Medal for his service in Korea. R. 166. And in 1989, he again received the Army Commendation Medal while serving at Fort Dix. R. 168.

Throughout his tenure in the Army, Crane's overall military performance was periodically rated by his immediate commanders in an Officer Evaluation Report ("OER"). The OER is a form that is divided into several parts, with each part addressing a different aspect of military service. Part IV of the OER is entitled "Professionalism" and consists of fourteen categories, including a category on whether the officer being evaluated has the proper military bearing and appearance. For each category, the officer is rated on a scale of "1" to "5" with "1" being the highest rating attainable.

II. Plantiff's Weight Problems

Until 1990, Crane received only superior marks on his OERs. In fact, on each occasion he was rated equal to or better than his peers.*fn1 In August of 1990, however, Crane began having problems controlling his weight. His OER for the period of August 31, 1990 to February 19, 1991 noted that Crane exceeded the Army's weight limits; however, the rater, a senior colonel, included a notation that Crane was enrolled and making satisfactory progress in the battalion's Weight Control Program and proceeded to award plaintiff a "1" for physical fitness. Ultimately, the colonel who rated Crane recommended him for promotion. R. at 5.

Crane's next OER was issued in February of 1992. The rater noted that Crane had lost weight and was presently within his prescribed weight limits. The rater also awarded plaintiff a "1" for military bearing and appearance and praised Crane's overall military performance. R. at 154-55.

In December of 1992, Crane was treated by Colonel Charles F. Miller, M.D., of the Medical Corps. Shortly thereafter, Dr. Miller issued a memorandum to Crane's commanding officer, informing the officer that Crane was being treated for familial hypercholestrolemia,*fn2 and should "not be placed on the Army Weight Program" or suffer "any unfavorable action . . . for a period of 90 days. . . ." R. at 20. The Army abided by Dr. Miller's recommendation, and Crane was removed from the Weight Control Program until April of 1993. R. at 184.

On January 8, 1993, while Crane was exempt from the Weight Control Program, he received another OER that noted that he had again exceeded his prescribed weight. R. at 10. As with the first adverse OER, the rater noted in Part IV and Block 12 of the January 1993 OER that Crane had exceeded his Army weight limit, and awarded him a "2" for military bearing or appearance. R. at 10. However, the rater noted that "Crane is not in compliance with the standards of AR 600-9.*fn3 He is being treated for familial hypercholesterolemia which may be a contributing factor to his difficulty in maintaining proper weight."*fn4 Id. The OER contained no other derogatory comments regarding Crane's military performance. Id. On the contrary, the rater awarded Crane a "1" for his knowledge, expertise, appearance, and physical fitness. Id.

On April 5, 1993, Crane reenrolled in the Weight Control Program, and weighed in at 212 pounds.*fn5 R. at 184. Crane next weighed in on July 27, 1993 at 203 pounds. As the record indicates, Crane was in compliance with the Weight Control Program and was noted for making satisfactory progress toward his required weight. R. at 184.

On August 23, 1993, Crane underwent surgery for a previous injury to his left knee. R. at 24. After the surgery, Crane was placed on crutches until October of 1993. As a result, Crane's doctor ordered that he be classified as a "P2 Profile." A P2 serviceman is not required to run or follow the standard Army fitness tests; instead, the serviceman participates in non-impact exercise. Based on his P2 status, the physician recommended that no adverse action be taken against Crane until January 15, 1994, or at such time when his recovery from knee surgery was complete. R. at 23-24, 118-119, 186.

Despite the physician's recommendation, plaintiff was required to weigh in for the Weight Control Program from October 1993 through January 1994. R. at 184. After each weigh-in, it was noted in Crane's record that he continued to exceed the Army's weight limit, but nothing was mentioned about his P2 status.

Complications with the plaintiffs recovery caused his P2 status to be extended until April of 1994. R. at 202. In February of 1994, while Crane continued to exercise under P2 status, he was notified that the Army had commenced separation proceedings against him for his "[f]ailure to conform to prescribed standards of dress, personal appearance, and military deportment." R. at 12. The Army based the involuntary discharge on Part IV of the OERs dated August 1990 and January 1993, and ordered Crane to show cause as to why he should be retained on active duty. Id.

A short time later, Crane submitted a rebuttal statement. R. at pp. 17-19. The Army considered the statement and decided that a Board of Inquiry ("BOI") Hearing was needed to determine whether Crane should be separated for substandard performance. R. at 45.

In the meantime, Crane's P2 Profile was lifted, and he re-enrolled in the Weight Control Program. Without the limitations of P2 status, Crane immediately began to lose weight. By the time the BOI Hearing took place in September of 1994, Crane had lost between 21 and 27 pounds. R. at pp. 56, 62, and 64.

III. The Board of Inquiry Hearing

The first three witnesses to testify at the BOI Hearing were: 1) Staff Sergeant Ronald Smith, the noncommissioned officer in charge of the Weight Control Program; 2) Captain Carol DeBarto, the officer responsible for monitoring the Weight Control Program; and 3) Dr. Charles Eggbert, M.D.

Both Smith and Eggbert's testimony supported the retention of Crane. Smith testified that Crane had made acceptable progress, losing the required amount of weight each month and decreasing his body fat percentage. R. at 56-57. Eggbert testified that "[l]oss of weight should be gradual to be the most effective. . . . [Crane] lost 27 pounds. That is good progress. . . . [H]e should not be losing weight at a greater rate." R. at 62.

Captain DeBarto was the only witness to testify against Crane. She testified that plaintiff "did not possess military appearance and demeanor." R. at 57-58. DeBarto further alleged that while she was in charge of the Weight Control Program, Crane failed to appear at scheduled weigh-ins, and that on one occasion she witnessed enlisted men mocking Crane for being overweight. Id. On cross-examination, DeBarto admitted that she and Major Crane had a disagreement about a summary ...

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