Free Status Report - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS MARNITA L. MCGRUDER Plaintiff, v. THE UNITED STATES Defendant, ) ) ) ) ) ) ) ) ) ) ) )

Civil Action No. 03-441C (Judge Allegra)

PLAINTIFF'S STATUS REPORT McGruder submits her status report on the ongoing proceedings before the Army Board for Correction of Military Records. Ms. McGruder and her counsel received on October 31, 2005, the approved decision of the BCMR granting her substantial relief. As the agency adjudication affords a satisfactory result, McGruder submits separately her notice of voluntary dismissal. Last week, counsel for McGruder made numerous phone calls to determine the status of the BCMR reconsideration. On October 25, counsel finally contacted a live person-- an official at the Army Review Boards Agency's legislative affairs office, Mr. Rick Schweigert. After explaining the court's order, the official researched the matter. He said a favorable decision was approved by the Army Secretary's delegate on October 3, but due to error it was never sent to counsel or McGruder. An unsigned copy was faxed to counsel. On October 31, counsel and Ms. McGruder received the signed, approved decision. See attached Exhibit A (postmarked October 26). On equitable grounds, the BCMR granted the following relief after finding her 1997 discharge was an injustice within the meaning of 10 U.S.C. § 1552(a): (1) voided Ms. McGruder's 1997 involuntary discharge for weight control failure; (2) reinstated her constructively to active duty to permit voluntary retirement at 20 years, 24 days on February 1, 2000, at her last grade held of E-7; (3) awarded back active duty and retired pay; (4) removed from her records entries relating to her weight control program enrollments. However,

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the BCMR did not grant full legal relief of retiring her at the normal expiration of her enlistment ending April 2001, and did not order promotion reconsideration to grade of E-8. Notwithstanding her disappointment of not securing all the relief requested, the BCMR decision granted her substantial relief. Ms. McGruder has conferred with her undersigned counsel on whether to reopen the Court proceedings to seek back pay on the balance of her final enlistment, particularly because the statute of limitations will lapse upon dismissal of her 1997 back pay claim. Counsel has researched the case law and her facts under the "half-a-loaf" doctrine. Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl.1979)("when a soldier has convinced the BCMR to correct his record it must not give only `half-a-loaf' of relief but make him whole"); Yee v. United States, 512 F.2d 1383, 1387 (Ct.Cl. 1975); Debow v. United States 434 F.2d 1333 (Ct. Cl. 1970). However, these and others cases relied on purely legal errors found by the correction boards, whereas McGruder's board found only equitable error. Ms. McGruder understands it is unsettled whether the doctrine applies to her unique situation-- when the BCMR did not find her 1997 discharge unlawful as violating procedures in effect in 1997, but rather was an injustice when subsequent scientific studies adopted by DoD showed the Army's weight control program discriminated against African-American females. Ms. McGruder has also considered, on this new evidence, whether to reopen the litigation to fully reargue that her 1997 discharge was illegal as arbitrary and capricious agency action. Having considered these options, Ms. McGruder has decided to end her eight-year odyssey because the BCMR decision granted her significant relief. Although this Court case was suspended and not remanded under RCFC 56.2(b)(4), for convenience McGruder declares that after reconsideration by the BCMR, the relief granted by that agency affords her a satisfactory disposition of the back pay claim at the administrative level, and further proceedings before the court are not desired. She concurrently submits a notice of voluntary dismissal under RCFC 41(a)(1). Voluntary dismissal is appropriate because the Court earlier dismissed with prejudice all her claims on the original complaint, while no responsive pleading was filed by defendant against her amended complaint. 2

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November 2, 2005

Respectfully submitted

s/ John A. Wickham Counsel for McGruder 32975 Saint Moritz Drive Evergreen CO 80439-6720 303 670-3825

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