Mosley v. Department of the Navy et al
Filing
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MEMORANDUM-DECISION AND ORDER granting Pltf's 27 Letter Motion for leave to file the summary judgment motion that is decided herein as Dkt. No. 28; denying Pltf's 28 Motion for Summary Judgment; granting Deft's 31 Motion for Summary Judgment and confirming the decision of the Board for Correction of Naval Records; Case is dismissed. Signed by Judge Norman A. Mordue on 5/15/13. [Served Pro Se Pltf by cert. mail.] (sfp, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
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ROBERT R. MOSLEY,
Plaintiff,
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6:12-CV-493 (NAM/TWD)
DEPARTMENT OF THE NAVY,
Defendant.
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APPEARANCES:
Robert R. Mosley
Plaintiff, pro se
Hon. Richard S. Hartunian, United States Attorney
Paula Ryan Conan, Esq., Assistant United States Attorney
100 South Clinton Street
Syracuse, New York 13261
Attorney for Defendants
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Hon. Norman A. Mordue, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
INTRODUCTION
In his amended complaint (Dkt. No. 22), plaintiff seeks review of the decision of the
Board for Correction of Naval Records (“BCNR”) denying his application to correct his military
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records and change his discharge from “other than honorable conditions” to “honorable
conditions.” Plaintiff filed a letter motion (Dkt. No. 27) requesting leave to file a summary
judgment motion, accompanied by a motion for summary judgment. The letter motion was
impliedly granted, inasmuch as the Court accepted the summary judgment motion and decides it
herein (Dkt. No. 28). Defendant cross-moves (Dkt. No. 31) for summary judgment.
As set forth below, the Court grants the letter motion (Dkt. No. 27), denies plaintiff’s
summary judgment motion (Dkt. No. 28), grants defendant’s summary judgment motion (Dkt.
No. 31), and dismisses the case.
BACKGROUND
On January 20, 1984, plaintiff enlisted in the Navy’s Delayed Entry Program, and on
August 27, 1984, he began active duty. The administrative record shows the following:
On December 30, 1985, plaintiff was screened for alcohol abuse due to an
alcohol related incident and placed in a treatment program.
•
On January 30, 1986 plaintiff received NJP for absence from his appointed
place of duty, two instances of failure to obey a lawful order, use of
marijuana, and drunk and disorderly conduct. The punishment imposed was
forfeitures of $300 per month for two months, 45 days of extra duty and a
reduction in pay rate.
•
Also on January 30, 1986, the Navy gave plaintiff “Notice of an
Administrative Board Procedure Proposed Action” notifying plaintiff that he
was “being considered for an administrative separation from the naval service
by reason of Misconduct”; that if separation was approved it would result in
a discharge; that if separation was approved, “the characterization of [his]
service may be under other than honorable conditions”; and that he had
various rights including the right to consult with counsel, to present
statements in his own behalf, and to be represented by counsel at the
Administrative Discharge Board (“ADB”) hearing.
•
On January 31, 1986, plaintiff signed a “Statement of Awareness and Request
for, or Waiver of, Privileges” acknowledging that he understood that he was
“being considered for an administrative separation from the naval service
which could result in an other than honorable discharge”; that he had
consulted with counsel; and that he elected to assert various rights including
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On May 23, 1985, plaintiff received nonjudicial punishment (“NJP”) for
absence from his appointed place of duty.1 The sanction was 15 days of
restriction and extra duty.
•
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•
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1
Nonjudicial punishment is authorized by 10 U.S.C. § 815. The applicable Manual for CourtsMartial was promulgated by President Ronald Reagan as Commander-in-Chief by Executive Order
12473. See 49 F.R. 17152, 1984 WL 72751. A commander may impose nonjudicial punishment upon
any military personnel of that command. See 49 F.R. 17152, 1984 WL 72751, Part V(2)(a). Nonjudicial
punishment provides commanders with an essential and prompt means of maintaining good order and
discipline and also promotes positive behavior changes in service members without the stigma of a
court-martial conviction. Id. at Part V(1)(c).
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the rights to present statements in his own behalf and to be represented by
counsel at the proceeding.
On February 10, 1986 plaintiff was screened for drug abuse due to the positive
urinalysis for marijuana. It was recommended that he be offered Veterans
Administration in-patient alcohol/drug treatment prior to his discharge.
•
On February 21, 1986 plaintiff received NJP for attempting to drive on a naval
base with an unauthorized vehicle pass. The punishment was 30 days of
restriction and a reduction in pay rate.
•
On February 25, 1986 an ADB proceeding took place. Plaintiff was
represented by counsel, witnesses were called, plaintiff’s counsel crossexamined the witnesses, and plaintiff testified. The ADB found that plaintiff
had committed misconduct due to the commission of a serious offense and
drug abuse, and unanimously recommended that plaintiff be discharged from
the naval service “under other than honorable conditions.”
•
On March 10, 1986 the commanding officer concurred with the ADB’s
findings and forwarded the case to the discharge authority
•
On March 23, 1986, the discharge authority directed an other than honorable
discharge with the provision that plaintiff be offered V.A. in-patient
drug/alcohol treatment prior to his discharge.
•
On March 25, 1986, plaintiff was counseled concerning the availability of
V.A. in-patient alcohol/drug treatment, but declined the treatment.
•
On April 1, 1986 plaintiff was discharged under other than honorable
conditions.
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•
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On November 27, 2002, plaintiff first applied to the BCNR to change his discharge status
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to honorable. The BCNR denied the application on May 29, 2003. Plaintiff next applied for an
upgraded discharge on June 18, 2006. The BCNR treated this as an application to reconsider the
2003 denial, and on May 2, 2006, the BCNR’s Executive Director advised plaintiff that
“reconsideration is not appropriate” because the new evidence plaintiff submitted was not
material. On January 13, 2010, plaintiff submitted a third application to change his discharge
status. On March 2, 2010 the BCNR again held that reconsideration was not appropriate.
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On May 3, 2010, plaintiff submitted a fourth application. On August 12, 2010, while the
fourth application was pending before the BCNR, plaintiff filed a complaint in this Court
challenging the BCNR’s 2003, 2006, and 2010 decisions. See Mosley v. Department of the Navy
(“Mosley I”), 7:10-CV-973. On July 14, 2011, the BCNR administratively closed the May 3,
2010 application pending the outcome of the litigation.
Defendants moved to dismiss Mosley I, commenced on August 12, 2010, based on the sixN
year statute of limitations applicable to judicial review of an action by a federal agency.2 A claim
for judicial review of a BCNR decision accrues at the time of the decision. See Blassingame v.
Secretary of Navy, 811 F.2d 65, 71 (2d Cir. 1987). Accordingly, this Court held that plaintiff’s
challenge to the 1986 ADB decision was time-barred, as was his challenge to the 2003 BCNR
decision. See Mosley I, 7:10-CV-973 (Dkt. No. 57). The Court further held that his claims for
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judicial review of the BCNR’s May 2, 2006 and March 2, 2010 decisions denying reconsideration
accrued on the dates of those decisions, and thus were not time-barred. See id. The Court
ultimately vacated the BCNR’s May 2, 2006 and March 2, 2010 decisions denying
reconsideration, and remanded plaintiff’s underlying reconsideration applications, dated June 18,
2006 and January 13, 2010. See Mosley I, 7:10-CV-973 (Dkt. No. 90), 2011 WL 3651142
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(N.D.N.Y. Aug. 18, 2011). Thereafter, plaintiff filed a new application for correction of his
records on January 12, 2012. After an expansive review of plaintiff’s entire record, the BCNR
denied the application on February 28, 2012.
Plaintiff’s amended complaint (Dkt. No. 22), seeking review of the BCNR’s February 28,
2
Judicial review of an action by a federal agency such as defendant is authorized by the
Administrative Procedures Act, 5 U.S.C. § 706(2)(A). A six-year statute of limitations applies. See 28
U.S.C. § 2401(a).
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2012 decision, is presently before this Court. The parties cross-move (Dkt. Nos. 28, 31) for
summary judgment.
THE BCNR’S FEBRUARY 28, 2012 DECISION
The BCNR’s February 28, 2012 decision is set forth below in full.
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This is in reference to your application for correction of your naval record
pursuant to the provisions of Title 10, United States Code, Section 1552. A
three-member panel of the Board for Correction of Naval Records, sitting in
executive session, considered your application on 28 February 2012. The
names and votes of the members of the panel will be furnished upon request.
Your allegations of error and injustice were reviewed in accordance with
administrative regulations and procedures applicable to the proceedings of this
Board. Documentary material considered by the Board consisted of your
application, together with all material submitted in support thereof, your naval
record, and applicable statutes, regulations, and policies.
After careful and conscientious consideration of the entire record, the Board
found the evidence submitted was insufficient to establish the existence of
probable material error or injustice.
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You enlisted in the Navy’s Delayed Entry Program on 20 January 1984 at age
18 and began a period of active duty on 27 August 1984. You served for about
nine months without disciplinary incident, but on 23 May 1985 you received
nonjudicial punishment (NJP) for absence from your appointed place of duty
and were awarded restriction and extra duty for 15 days. The record reflects
that, although you were advised of your appeal rights, you elected not to
submit one. The record also reflects that you were subsequently counselled
regarding this misconduct.
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You served for about seven more months without disciplinary incident,
however, on 30 January 1986, you again received NJP for two specifications
of failure to obey a lawful order, wrongful use of marijuana, and drunk and
disorderly conduct. The punishment imposed was reduction to paygrade E-2,
extra duty for 45 days, and a $600 forfeiture of pay. You did not appeal this
NJP, were counselled regarding the seriousness of this misconduct, and
advised of the pending administrative action as a result of it. You were
subsequently notified of pending administrative separation action by reason
of misconduct due to commission of a serious offense as evidenced by your
history of disciplinary infractions and/or incidents, and drug abuse. After
consulting with legal counsel you elected to present your case to an
administrative discharge board (ADB). Prior to the ADB hearing, on 21
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February 1986, you received your third NJP for two specifications of criminal
attempt and were awarded reduction to paygrade E-1 and restriction for 30
days. Again, the record reflects that, although you were advised of your
appeal rights, you elected not to submit one and that you were counselled in
regard to your continued misconduct. Nonetheless, on 25 February 1986, an
ADB recommended discharge under other than honorable conditions by
reason of misconduct due to commission of a serious offense and drug abuse.
This recommendation noted, in part, that in addition to receiving three NJPs,
you received three report chits for alleged aggravated assault charges, several
alleged or substantiated alcohol related incidents, and controlled substance
abuse. It also noted other alcohol related incidents that were in violation of
Navy regulations/rules which prohibited minors from consuming alcohol.
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On 10 March 1986 your commanding officer, in concurrence with the ADB,
also recommended discharge under other than honorable conditions by reason
of misconduct due to commission of a serious offense and drug abuse, stating
in part, that your violations continued even after you had been notified of
pending administrative discharge action, which was indicative of your failure
to adapt to military standards and behavior. On 23 March 1986 the discharge
authority approved the foregoing recommendations and directed your
commanding officer to issue you an other than honorable discharge by reason
of misconduct due to commission of a serious offense, and on 1 April 1986,
you were so discharged.
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The Board, in its review of your entire record and applications, to include
your applications for reconsideration of your case, carefully weighed all
potentially mitigating factors, such as your youth, post service conduct, desire
to upgrade your discharge and remove your NJPs, and the correspondence
attached with the court order remanding your case. It also considered your
assertions of not being counselled or advised of NJP rights, and not being
offered alcohol rehabilitation. It further considered your assertion that your
NJPs and discharge were unconstitutional and in violation of Navy
regulations. Nevertheless, the Board concluded these factors were not
sufficient to warrant relief in your case because of the seriousness of your
repetitive misconduct which included drug and alcohol abuse, and resulted in
three NJPs and repeated counselling. Further, the Board concluded that the
imposition of your NJPs and the administrative separation process were
administratively, procedurally, and legally proper as written and filed. Finally,
the Board found that there is sufficient evidence in the record that is contrary
to your assertions. Accordingly, your application has been denied.
It is regretted that the circumstances of your case are such that favorable
action cannot be taken. You are entitled to have the Board reconsider its
decision upon submission of new and material evidence or other matter not
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previously considered by the Board. In this regard, it is important to keep in
mind that a presumption of regularity attaches to all official records.
Consequently, when applying for a correction of an official naval record, the
burden is on the applicant to demonstrate the existence of probable material
error or injustice.
APPLICABLE LAW
The Secretary of the Navy is authorized to correct any military record of the Navy “when
the Secretary considers it necessary to correct an error or remove an injustice.” 10 U.S.C. §
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1552(a)(1). The Secretary does so by acting through boards of civilians of the executive part of
the Navy, in this case the BCNR. Id. The BCNR’s function is “to consider applications properly
before it for the purpose of determining the existence of error or injustice in the naval records of
current and former members of the Navy ... , to make recommendations to the Secretary or to take
corrective action on the Secretary’s behalf when authorized.” 32 C.F.R. § 723.2(b). The BCNR
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may deny an application “if it determines that the evidence of record fails to demonstrate the
existence of probable material error or injustice.” 32 C.F.R. § 723.3(e)(2). The BCNR “relies on
a presumption of regularity to support the official actions of public officers and, in the absence of
substantial evidence to the contrary, will presume that they have properly discharged their official
duties.” Id. The burden is on the applicant to overcome the presumption. Id.
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The Court applies the familiar standard applicable to judicial review of administrative
decisions. Under the Administrative Procedure Act (“APA”), “[t]he reviewing court shall ... hold
unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law[.]” 5 U.S.C. §
706(2)(A). A court must conduct a “searching and careful” inquiry, but cannot substitute its
judgment for that of the agency. See Natural Res. Def. Council, Inc. v. F.A.A., 564 F.3d 549, 555
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(2d Cir. 2010). As the Second Circuit recently explained,
Although highly deferential, this standard “does not equate to no review.”
Notably, the APA contemplates that, in deciding a challenge to agency action,
a court will review the administrative record to ensure “that the agency
examined the relevant data and articulated a satisfactory explanation for its
action. Moreover, the agency’s decision must reveal a rational connection
between the facts found and the choice made.”
Brodsky v. United States Nuclear Regulatory Comm’n, 704 F.3d 113, 119 (2d Cir. 2013)
(citations omitted). It is beyond dispute that “a petitioner’s failure to assert an argument before an
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administrative agency bars it from asserting that argument for the first time before a reviewing
court.” Railway Labor Execs. Ass'n v. United States, 791 F.2d 994, 1000 (2d Cir. 1986) (citing
United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952)).
Summary judgment is appropriate when there is no genuine issue with regard to any
material fact, and the moving party is entitled to judgment as a matter of law. See Celotex Corp.
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v. Catrett, 477 U.S. 317, 322 (1986). When deciding a summary judgment motion, the court must
“resolve all ambiguities and draw all factual inferences in favor of the party opposing the
motion.” McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999). Where, as here, the
nonmovant is proceeding pro se, the court must read that party’s papers liberally and interpret
them “to raise the strongest arguments that they suggest.” Id. (citation omitted).
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DISCUSSION
Any direct challenge to plaintiff’s 1985 and 1986 NJPs, his 1986 discharge, and the
BCNR’s 2003 decision is time-barred. The BCNR’s February 28, 2012 decision and the
underlying administrative record make clear that the BCNR did not limit its review to whether
plaintiff had submitted new evidence warranting reconsideration of the BCNR’s 2003 denial of
his request to correct his military record. Rather, it conducted a full review of whether plaintiff
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was entitled to correction of his military record. It correctly articulated the purpose of review as
“determining the existence of error or injustice[.]” 32 C.F.R. § 723.2(b). The BCNR’s review
took into account the entire record, including plaintiff’s submissions in support of his 2002
application for correction of the record, his 2006 and 2010 applications for reconsideration, his
submissions to the BCNR after remand, and his military record.3 The BCNR denied the
application, holding that plaintiff had not carried his burden of overcoming the presumption of
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regularity attached to the official action, and that the evidence submitted was “insufficient to
establish the existence of probable material error or injustice.” Accordingly, the Court conducts a
searching and careful review of the entire administrative record and the BCNR’s decision in light
of the appropriate standard of review.
Plaintiff complains that his offenses were sufficiently serious that he should not have been
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subjected to NJP proceedings on January 30, 1986 and February 21, 1986, but rather should have
been tried in a court martial, which would have afforded him more rights.4 In the same vein,
plaintiff alleges he was not “counselled or advised of NJP rights” in connection with the January
3
The BCNR’s expansive review of plaintiff’s entire record eliminates any potential procedural
questions regarding whether particular issues from plaintiff’s 2006 and 2010 applications have been
preserved.
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4
The rights afforded to a service member in the NJP procedure are as follows. Prior to the NJP
proceeding, the service member must be given notice, including a statement that the commander is
considering the imposition of nonjudicial punishment; a statement describing the alleged offenses; a brief
summary of the information upon which the allegations are based or a statement that the member may,
upon request, examine available statements and evidence; a statement of the rights the member will be
afforded at the proceeding; and, if applicable, the right to refuse NJP. See 49 F.R. 17152, 1984 WL
72751, Part V(4)(a). During the NJP hearing, the service member has the following rights: to be informed
of the right against self-incrimination; to be accompanied by a spokesperson; to be informed orally or in
writing of the information against the member relating to the alleged offenses; to examine any documents
or physical evidence the commander will consider; to present evidence in defense, extenuation, and
mitigation; to present relevant and reasonably available witnesses; and to have the proceeding open to the
public. Id. at 4(c)(1). At the conclusion of the proceeding, the commander determines whether the
member is guilty of the alleged offense(s), based upon a preponderance of the evidence. Id. at 4(c)(4).
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30, 1986 and February 21, 1986 NJPs.5 The ADB’s discharge decision, which includes a
summary of all the testimony and evidence before the ADB, shows that plaintiff did not raise
these issues before the ADB. The BCNR addressed the issues in its February 28, 2012 decision,
stating that it “considered [plaintiff’s] assertion that [his] NJPs ... were unconstitutional and in
violation of Navy regulations,” and that it “concluded that the imposition of [his] NJPs ... [was]
administratively, procedurally, and legally proper as written and filed,” and further that there was
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“sufficient evidence in the record that is contrary to plaintiff’s assertions.” The Court notes that
during the ADB hearing, plaintiff admitted almost all of the misconduct underlying his NJPs and
his ultimate discharge. The Court also notes that 1984 edition of the “Manual for Courts-Martial”
gives to a commander the “personal discretion in evaluating each case, both as to whether
nonjudicial punishment is appropriate, and, if so, as to the nature and amount of punishment
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appropriate.” 49 F.R 17152, 1984 WL 72751, Part V(1)(d)(2). Further, “[t]he decision whether
an offense is ‘minor’ is a matter of discretion for the commander imposing nonjudicial
punishment,” taking into account factors such as “the nature of the offense and the circumstances
surrounding its commission, [and] the offender’s age, rank, duty assignment, record, and
experience[.]” Id. at Part V(1)(e). Here, plaintiff’s January 30, 1986 NJP was based on his
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absence from his appointed place of duty, two instances of failure to obey a lawful order, use of
marijuana, and drunk and disorderly conduct. The February 21, 1986 NJP was based on
5
The record shows that on February 21, 1986, plaintiff signed an acknowledgment of rights form
stating that he had “consulted with the following counsel, Lt. Lyles” and that he “[a]ccept[ed] nonjudicial punishment, and ... waive[d] [his] right to trial by court-martial.” That the record does not
contain a similar document for the January 30, 1986 NJP proceeding is not surprising, inasmuch as the
proceeding took place more than 25 years ago, nor does it undermine the BCNR’s conclusion upon the
entire record that plaintiff “fail[ed] to demonstrate the existence of probable material error or injustice,”
and failed to overcome the presumption of regularity.
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plaintiff’s attempt to drive on the base with an unauthorized vehicle pass. A determination that
these are relatively minor offenses not requiring court martial is not unreasonable. The BCNR’s
conclusion that the imposition of plaintiff’s NJPs was proper, and that plaintiff failed to
demonstrate probable material error or injustice regarding this issue is supported by the record
and is not arbitrary, capricious, an abuse of discretion, or contrary to law.
In addition, the BCNR considered plaintiff’s claims that he was not afforded his rights in
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the February 25, 1986 ADB proceeding culminating in his discharge. The February 28, 2012
BCNR decision concluded that the administrative separation process was “administratively,
procedurally, and legally proper as written and filed.” The record, particularly the summary of
evidence contained in the ADB decision, contains ample support for the BCNR’s holding on this
point. Plaintiff was represented by counsel, witnesses were called and cross-examined, and
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plaintiff testified in his defense. The BCNR’s conclusion that plaintiff failed to demonstrate
probable material error or injustice with respect to this issue is supported by the record and is not
arbitrary, capricious, an abuse of discretion, or contrary to law.
Further, in its February 28, 2012 decision, the BCNR rejected plaintiff’s assertion that the
ADB improperly recommended discharge with an other than honorable status. The BCNR found
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sufficient evidence in the record to support the outcome, observing that “in addition to receiving
three NJPs, [plaintiff] received three report chits for alleged aggravated assault charges, several
alleged or substantiated alcohol related incidents, and controlled substance abuse” and that there
were “other alcohol related incidents that were in violation of Navy regulations/rules which
prohibited minors from consuming alcohol.” It cannot reasonably be argued that there were
insufficient grounds for the other than honorable discharge. Indeed, plaintiff does not dispute that
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he committed the misconduct; rather, he argues that he was immature, an alcoholic, and had
mental problems, and that the Navy did not offer him the help he needed. In this respect, the
BCNR stated that it “carefully weighed all potentially mitigating factors, such as [plaintiff’s]
youth, post service conduct, desire to upgrade [his] discharge and remove [his] NJPs, and the
correspondence attached with the court order remanding [the] case.” The BCNR “also considered
[plaintiff’s] assertions of ... not being offered alcohol rehabilitation.”6 The BCNR “concluded
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these factors were not sufficient to warrant relief in [plaintiff’s] case because of the seriousness of
[his] repetitive misconduct which included drug and alcohol abuse, and resulted in three NJPs and
repeated counselling.” The record supports this conclusion. Again, the BCNR’s conclusion that
plaintiff failed to demonstrate the existence of probable material error or injustice is supported by
the record and is not arbitrary, capricious, an abuse of discretion, or contrary to law.
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After a thorough review of the record, and consideration of the other issues raised by
plaintiff, the Court finds that in reaching its February 28, 2012 determination, the BCNR
examined the relevant proof and articulated a satisfactory explanation for its action. There is
clearly a rational connection between the facts found by the BCNR and the BCNR’s decision. In
reviewing plaintiff’s requests for correction of his military record and for reconsideration, the
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Court finds no significant issues that were not addressed in the BCNR’s February 28, 2012
decision. In his amended complaint herein (Dkt. No. 22), plaintiff raises a few procedural issues
regarding the ADB proceeding that were not raised before the BCNR. His failure to raise these
issues before the BCNR bars him from asserting them for the first time before this Court. See
6
In fact, while in the Navy plaintiff was placed in an alcoholism treatment program, and on
March 25, 1986, he was counseled concerning the availability of V.A. in-patient alcohol/drug treatment,
but declined the treatment.
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Railway Labor Execs., 791 F.2d at 1000. In any event, even if the Court were to consider these
issues, they would not establish that the BCNR decision is unsupported by the record or is
arbitrary, capricious, an abuse of discretion, or contrary to law. Plaintiff’s challenges to the
BCNR February 28, 2012 decision lack merit.
The Court has read this pro se plaintiff’s papers most liberally, and has interpreted them
“to raise the strongest arguments that they suggest.” The Court finds no questions of fact that are
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material to the question of whether the BCNR’s February 28, 2012 decision was arbitrary,
capricious, an abuse of discretion, or contrary to law. Defendant has demonstrated its entitlement
to judgment in its favor as a matter of law.
CONCLUSION
It is therefore
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ORDERED that plaintiff’s letter motion (Dkt. No. 27) for leave to file the summary
judgment motion that is decided herein as Dkt. No. 28 is granted; and it is further
ORDERED that plaintiff’s motion for summary judgment (Dkt. No. 28) is denied; and it is
further
ORDERED that defendant’s motion for summary judgment (Dkt. No. 31) is granted, and
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the decision of the Board for Correction of Naval Records is confirmed; and it is further
ORDERED that the case is dismissed with prejudice; and it is further
ORDERED that the Clerk of the Court is directed to serve copies of this MemorandumDecision and Order in accordance with the Local Rules of the Northern District of New York.
IT IS SO ORDERED.
Date: May 15, 2013
Syracuse, New York
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