No. __-____
IN THE SUPREME COURT OF THE UNITED STATES
IN THE INTEREST OF C.E.A.Q
JOSHUA A. PRUITT,
Petitioner
v.
UNITED STATES OF AMERICA,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF THE DISTRICT OF COLUMBIA
PETITION FOR A WRIT OF CERTIORARI
Submitted by:
Joshua A. Pruitt
4500 Connecticut Ave NW
Washington DC 20008
205-579-5124
JoshuaAPruitt205@gmail.com
Pro Se Litigant
QUESTIONS PRESENTED
- Whether the Respondent acted arbitrarily, capriciously, and without support of substantial evidence, in violation of the Administrative Procedure Act, by failing to consistently apply the relevant binding instructions, and in particular the Hagel Memo, when reviewing class members’ discharge statuses;
- Whether the Respondent violated the Fifth Amendment and the Administrative Procedure Act by failing to apply consistent and medically appropriate standards for PTSD and PTSD-related conditions when considering whether to upgrade the proposed class members’ discharge statuses;
- Whether the Respondent violated the Fifth Amendment and the Administrative Procedure Act by failing to give the requisite amount of consideration to class members’ evidence of PTSD and PTSD-related conditions, particularly medical diagnoses, when considering whether to upgrade the class members’ discharge statuses;
PARTIES TO THE PROCEEDING
Petitioner, Joshua A. Pruit, is a citizen of the United States.
Respondent, The Respondent is the Department of the Army.
There are no other parties involved in these proceedings.
TABLE OF CONTENTS
QUESTIONS PRESENTED……………………..…………….………2
PARTIES TO THE PROCEEDING…………….…………….………5
TABLE OF APPENDICES…………………………………….………7
TABLE OF AUTHORITIES……………………….………….………8
PETITION FOR WRIT OF CERTIORARI………………….……..11
OPINIONS BELOW…………………………………………………..11
JURISDICTION………………………………………………………11
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED…………………………………………..11
STATEMENT OF THE CASE………………………………….……14
1. Factual Background…………………………………………..14
2. Procedural History……………………………………………….14
REASONS FOR GRANTING THE PETITION……………………16
CONCLUSION………………………………………………………..35
TABLE OF AUTHORITIES
Cases
Bland v. Connally, 293 F.2d 852,
858 (D.C. Cir. 1961)………………………………………………………….14
Wood v. Secretary of Defense, 496 F. Supp.
192, 193 n. 1 (D.D.C. 1980)…………………………………………………14
Consolo v. Federal Maritime Commission,…………………..……………15
Kennedy v. Fanning, No. 3:2016cv0201……………………………………15
Roelofs v. Secretary of the Air Force,
628 F.2d 594, 603 and n. 12 (D.C. Cir. 1980)…………………………….14
Statutes
28 U.S.C. § 1257 ………………………………………………………………………….11
38 U.S.C. § 7252 …………………………………………………………………….23, 30
38 U.S.C. § 7292 ………………………………………………………………………….23
38 U.S.C. § 5307 …………………………………………………………………..passim
38 USC § 211 ………………………………………………………………………..passim
38 U.S.C. § 511 …………………………………………………………………….passim
38 U.S.C. § 5301 ……………………………………………………………………passim
42 U.S.C. § 659 ……………………………………………………………………..passim
Other Authorities
Regulations
Article 19, UCMJ, 10 U.S.C. § 819.4………………………………….13
Uniform Code of Military Justice (UCMJ),
10 U.S.C. §§ 818, 819 (1983)………………………………………….13
32 C.F.R. Sec. 41………………………………………………………13
32 C.F.R. § 724.202(a)(3) (1991)………………………………………15
32 C.F.R. § 724.203(b) (1991)…………………………………………15
10 U.S.C. § 1553(b) (1988)…………………………………………….15
A.R. 635-200……………………………………………………………14
PETITION FOR WRIT OF CERTIORARI
Petitioner, Joshua A. Pruitt, respectfully petitions for a writ of certiorari to review the decision of the Supreme Court.
JURISDICTION
The Court has jurisdiction over this petition pursuant to 28 U.S.C. § 1257.
STATEMENT OF THE CASE
1. Factual Background
On 11th July, 2003, Petitioner voluntarily enlisted in the United States Army Reserve, where he successfully completed basic training and advanced individual training and was awarded military occupational specialty 21k, designation, plumber.
On 14th January, 2005, Petitioner was ordered to active duty in support of Operation Enduring Freedom and was deployed to Afghanistan. While on active duty, Petitioner was considered a hardworking and disciplined worker and supported the Operation in whatever manner possible.
However, Petitioner was subjected to a hostile environment where his fellow military men, including superiors, treated the Petitioner unfairly, due to their perception that the Petitioner acted as a member of the “African American community”. Following such perspective, the Petitioner was isolated and treated unfairly in the middle of a warzone and away from the support of his family and friends.
Petitioner did not have any redress to express himself and was constrained to bottle-up and hide his problems and concerns.
On 28th August 2005, Petitioner was court martialed for wrongful possession of hashish and was subsequently tried and convicted. Consequently, on 17th August 2007, the Petitioner was discharged from the Army with a bad conduct discharge under the provisions of Chapter 3 of the Army Regulation 635-200.
Sometimes in early 2008, the Petitioner filed an application with the Army Board for Correction of Military Records (ABCMR) seeking order correcting his retirement status and seeking declaratory relief and an award of back pay.
On April 15, 2008, the application was placed before the board for consideration. Unfortunately, the application was denied by the board and the Petitioner was notified of the same on April 17, 2008.
Sometimes in 2016, Petitioner visited a mental health specialist by the name Ronal Koshes for specialized attention. Petitioner had become aware that he was unable to cope properly with his environment and was concerned for his mental wellbeing.
During Petitioner’s sessions with Dr. Koshes, it became apparent that the Petitioner suffered from Post-Traumatic Stress Disorder, which disorder Dr. Koshes was able to trace to the Petitioner’s time in Afghanistan in the year 2005.
Dr. Koshes further informed the Petitioner that given the PTSD diagnosis, the Petitioner ought to have received a mental assessment prior to his discharge.
The Respondent failed to adhere to the instructions relevant to service-members’ PTSD and related mental health conditions as set forth in the Hagel Memo.
2. Procedural History
Sometimes early in 2008, Petitioner filed an application with the Army Board for Correction of Military Records (ABCMR) seeking to review his discharge for bad conduct and to be reenlisted to the military. On April 15, 2008, the ABCMR heard the Petitioner’s application and on April 17, 2008, Petitioner was notified via letter that his application was denied.
Again, sometime in early 2015, Petitioner filed a second application seeking an order correcting his retirement status and seeking declaratory relief and an award of back pay. Again, 9th April 2015 the Petitioner’s application was denied and the Petitioner was notified of the same on April 10, 2015.
Sometime early in the year 2017, Petitioner filed yet another application for consideration by the ABCMR seeking upgrade of discharge status and reenlistment to the military.
True to the Respondent’s character, the Petitioner’s application was denied on March 28, 2017, and notice was issued to the Petitioner on March 31, 2017.
REASONS FOR GRANTING THE PETITION
- The Petitioner challenges the systematic failure of the ABCMR to give proper consideration to the directive of the Hagel Memo relevant to discharge upgrade applications. The Petitioner’s experience with this systemic failure has prejudiced his upgrade applications.
- There are five types of discharges from the Army: honorable, general, undesirable, bad conduct, and dishonorable. A service member who is separated at the expiration of his or her normal term of service may be given an honorable or a general discharge, regardless of the quality of that service. 32 C.F.R. Sec. 41, App. A, Part 1, p A.2. (1988).
- Premature separation from the Army can be accomplished either by court martial or through administrative discharge proceedings. A member of the service can be separated by means of a bad conduct or dishonorable discharge only by a court martial. Articles 18 and 19, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 818, 819 (1983). While a regular court martial may issue either of these discharges, a special court martial entirely lacks the power to issue a dishonorable discharge, and it may issue a bad conduct discharge only if a court reporter is present during the proceedings. Article 19, UCMJ, 10 U.S.C. § 819.4
- Administrative proceedings for premature separation can result in honorable, general,5 or undesirable discharges.6 32 C.F.R. Part 41,; Wood v. Secretary of Defense, 496 F. Supp. 192, 193 n. 1 (D.D.C. 1980). Under the Army’s regulations, an individual separated for such shortcomings as inaptitude, defective attitudes, apathy, and inability to expend effort constructively will receive an honorable or a general discharge. A.R. 635-200, paragraphs 13-5b, 13-31b. Only an individual discharged for such offenses as “frequent incidents of a discreditable nature with civil or military authorities,” an “established pattern of shirking,” “sexual perversion,” or “drug abuse” may be administratively given an undesirable discharge. A.R. 635-200, paragraphs 13-5a., 13-31a.
- Unfortunately, post-traumatic stress disorder (PTSD) is a common psychological condition suffered by military service members and veterans. They may not recognize or understand their symptoms immediately. Some commosn indicators of PTSD include sharp mood swings, flashbacks of traumatic events, and problems with following instructions or orders. This can result in Article 15 discipline or more serious sanctions, especially if a service member starts abusing alcohol or drugs to deal with their PTSD. They may ultimately leave the military with a dishonorable discharge, which prevents them from getting VA benefits.
- A discharge characterized as anything other than honorable carries with it both a serious stigma in the form of injury to reputation and loss of employment opportunities, Bland v. Connally, 293 F.2d 852, 858 (D.C. Cir. 1961), and it may also involve loss of entitlement to federal and state veterans benefits. See Roelofs v. Secretary of the Air Force, 628 F.2d 594, 603 and n. 12 (D.C. Cir. 1980) (Bazelon, J., concurring). On this basis, the Army has by regulation provided for numerous procedural protections with respect to both court martial and administrative discharge proceedings. Of particular relevance to this case are the safeguards that apply in the administrative process: they include notice, a hearing before a board of officers, the right to counsel, the opportunity to present witnesses and to cross examine adverse witnesses, and the opportunity to testify if the service member so chooses. A.R. 635-200, paragraphs 13-12 through 13-25, 32 C.F.R. Part 41.
- In Kennedy v. Fanning, No. 3:2016cv02010 – Document 74 (D. Conn. 2018) the District Court held as follows, “All Army, Army Reserve, and Army National Guard veterans of the Iraq and Afghanistan era—the period between October 7, 2001 to present—who: (a) were discharged with a less-than Honorable service characterization (this includes General and Other than Honorable discharges from the Army, Army Reserve, and Army National Guard, but not Bad Conduct or Dishonorable discharges); (b) have not received discharge upgrades to Honorable; and (c) have diagnoses of PTSD or PTSD-related conditions or record documenting one or more symptoms of PTSD or PTSD-related conditions at the time of discharge attributable to their military service under the Hagel Memo standards of liberal and special consideration.”
- However, administrative decisions may be set aside “only for substantial procedural or substantive reasons as mandated by [the] statute.” Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966))
- It is the Petitioner’s contention that the Respondent acted arbitrarily, capriciously, and without support of substantial evidence, in violation of the Administrative Procedure Act, by failing to consistently apply the relevant binding instructions, and in particular the Hagel Memo, when reviewing class members’ discharge statuses.
- The Discharge Review Board has the statutory authority to “change a discharge or dismissal, or issue a new discharge, to reflect its findings.” 10 U.S.C. § 1553(b) (1988). Its function is to correct any “injustice or inequity in the discharge issued.” 32 C.F.R. § 724.203(b) (1991). The evidence reviewed by the Board includes an aggrieved person’s military records and other information presented in person or by affidavit. 32 C.F.R. § 724.202(a)(3) (1991).
- The ABCMR decision does not reflect adherence to the principles set forth in three Departement of Defense directives on military sexual trauma and PTSD, including: 1) Secretary of Defense Charles Hagel’s 2014 memorandum entitled “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgraded Requests by Veterans Claiming Post Traumatic Stress Disorder” (“Hagel Memo”); 2) Under Secretary of Defense Anthony Kurta’s 2017 memorandum entitled “Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment” (“Kurta Memo”); and 3) Under Secretary of Defense Robert L. Wilkie’s 2018 memorandum entitled “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” (“Wilkie Memo”).
- The Hagel, Kurta, and Wilkie Memos reflect a commitment within the military to “ensure[] fair and consistent standards of review” for veterans with mental illness, PTSD, or who have experienced a military sexual trauma. Kurta Memo.
- The Petitioner’s request for a change in his discharge status related to his mental health status and PTSD is covered by the terms of the guidance, and that the guidance is binding on the ABCMR.
- The memos required the Board to consider a number of principles in reviewing the Petitioner’s arguments. The Kurta Memo, for example, requires the ABCMR to give “liberal consideration . . . to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD”. “Liberal consideration,” the memo explains, means that it would be “unreasonable to expect the same level of proof for injustices committed years ago when . . . mental health conditions, such as PTSD; and victimology were far less understood than they are today,” and that “mental health conditions, including PTSD. . . impact veterans in many intimate ways, are often undiagnosed or diagnosed years afterwards, and are frequently unreported,”; Hagel Memo A3 (stating that “[i]n cases where Service records or any document from the period of service substantiate the existence of one or more symptoms of what is now recognized as PTSD or a PTSD-related condition during the time of service, liberal consideration will be given to finding that PTSD existed at the time of service”). The Kurta Memo also makes clear that evidence of PTSD or sexual assault “may come from sources other than a veteran’s service record.” Particularly relevant here are sources that include: “requests for transfer to another military duty assignment;” “episodes of depression,” and “relationship issues.” Additionally, the “veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge.”
- In the present case, the Board’s decision reflects no consideration of the principle that “[a] determination made by the board that the Petitioner’s mental health condition, including PTSD is connected to military service, while not binding on the Department of Defense, is persuasive evidence that the condition existed or experience occurred during military service.” The Kurta Memo further provides that “[a]diagnosis made by a licensed psychiatrist or psychologist that [a mental health] condition existed during military service will receive liberal consideration.” In short, the Board’s decision does not reflect that it took into account the principles outlined in these memoranda. For this reason as well, its decision was arbitrary, capricious, and contrary to law
CONCLUSION
- Petitioner respectfully requests the Court grant his petition. The decision by the ABCMR puts at issue, and at risk, the future of the Petitioner as an individual and as a former member of the army of the United States. To promote the Progress of fair treatment to all persons, this Court should issue a writ of certiorari in order to ensure the Petitioner’s application to review his discharge status is fairly and accurately considered and determined.
Respectfully submitted,
__________________________
Joshua A. Pruitt
4500 Connecticut Ave NW
Washington DC 20008
205-579-5124
JoshuaAPruitt205@gmail.com
Pro Se Litigant
Dated: September 7th, 2021
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