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.
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
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.
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
III. The Board of Inquiry Hearing
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 ...