BOARDS FOR THE CORRECTION OF MILITARY RECORDS (BCMR) BLOG
Dupes v. McHugh: Army Settles Lawsuit Challenging ABCMR's Denial of Application of Two-Time Purple Heart Recipient
A short-lived lawsuit in the U.S. District Court for the District of Columbia, Dupes v. McHugh, Case No. 15-cv-01047, concerned a denial by the Army Board for the Correction of Military Records (ABCMR) of the plaintiff’s application for reconsideration because it was filed one day beyond the one-year limitation period for applications for reconsideration. The Army promptly settled the suit, agreeing to require the ABCMR to consider Mr. Dupes’ application and issue a decision on the merits.
According to the lawsuit, Mr. Dupes served in Vietnam from May 1969 to February 1971. He was twice wounded in combat by gunfire, mortar fire, and grenade. The Army awarded him the Silver Star, two Bronze Star medals, two Purple Heart medals, and the Combat Infantryman Badge. He suffers from serious medical conditions as a result, including PTSD and TBI.
Mr. Dupes first applied to the ABCMR in 2010, seeking disability retirement benefits. He alleged that he was improperly denied Army disability evaluation system processing and was entitled to disability retirement. The ABCMR denied his application on July 26, 2011. The ABCMR informed Mr. Dupes that he could request reconsideration within one year, if he presented new evidence.
Mr. Dupes' various combat-related medical conditions worsened during the year following the ABCMR’s denial of his application. The lawsuit asserted that he “struggled psychologically to being assembling new evidence to submit for BCMR reconsideration. … As the July 2012 deadline approached Dupes completed his application. However, prior to filing, he mentally and physically collapsed – suffering a severe episode of incapacitating PTSD symptoms and TBI disabling migraines. After Mr. Dupes recovered, he submitted his application, dated July 27, 2012,” to the ABCMR.
By letter dated August 10, 2012, the ABCMR informed Mr. Dupes that it received his “letter and compact disc” and that the ABCMR would “determine the merits” of his request. A second letter, dated August 23, 2012, acknowledged receipt of his submission, dated July 27, 2012, and assigned a case number. A third letter, dated October 17, 2012, informed Mr. Dupes that the “staff of the ABCMR reviewed your request for reconsideration and determined that [it] was not received within one year of the ABCMR’s original decision. As a result, your request for reconsideration does not meet the criteria outlined above, and we are returning your application without further action.”
Mr. Dupes cited the Supreme Court’s 2011 decision in Henderson v. Shinseki, 562 U.S. 428, in which the Court ruled that the 120-day limitation period for veterans to appeal a benefits decision to the U.S. Court of Appeals for Veterans Claims was not jurisdictional, and therefore was subject to equitable tolling. Mr. Dupes appears to have been prepared to assert that Congress intended the ABCMR to operate as an informal, non-adversarial, remedial tribunal, like the VA, and therefore its one-year limitation rule is subject to equitable tolling. The argument seems compelling, at least at first glance.
In support of his position, Mr. Dupes also reminded the Court and the Army of the 1972 decision of the U.S. Court of Appeals for the D.C. Circuit in Robinson v. Resor, 469 F.2d 947 (D.C. Cir. 1972): "We hold that the relation of the Government to its soldiers, both as to substantive decisions on their status and the procedures used to arrive at those decisions, must be 'if not paternal at least avuncular.' Substantial fairness, rather than nitpicking compliance with precise regulations, must guide the Army’s actions. The Army must not be allowed to reach, step by technical step, a result which, viewed in its entirety, constitutes an overwhelming leap into the arbitrary and inequitable."
More compelling circumstances than those of Mr. Dupes for waiving a non-statutory limitation period in the interests of justice are hard to imagine. The Army created and imposed the one-year limitation period on applicants, without compulsion from Congress, and the Army could (and should) have quietly waived it. The Board’s treatment of Mr. Dupes speaks volumes about the mindset of ABCMR staff and board members. Clearly they do not feel any duty to assist or show compassion toward applicants, not even those seriously wounded in combat. Mr. Dupes was poised to challenge all that. It may be unfortunate for others that he was unable to.