Mosley v. Department of the Navy

Filing 90

MEMORANDUM-DECISION & ORDER: It is ordered that the # 59 Motion to Appoint Counsel is denied as moot; the # 62 Motion to Remand is granted as set forth herein, based on defendant's concession in its # 88 status report; it is ordered that p laintiff's 2006 and 2010 applications contain new material evidence or other matter warranting reconsideration, and thus the 2006 and 2010 determinations are vacated and the applications shall be forwarded to the BCNR for decision on the merits, the # 66 Motion for Summary Judgment is granted only to the extent of vacating the 2006 and 2010 determinations and is otherwise denied, plaintiff's # 82 Letter Motion is denied, and the 67 , 70 , 73 , 74 , 76 , and 83 Letter Motions are denied as moot. It is ordered that this case is closed. Signed by Judge Norman A. Mordue on 12/29/2011. {Copy mailed to pro se plaintiff by regular mail} (jmb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
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Robert R. Mosley,
Plaintiff,
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7:10-CV-973 (NAM/GHL)

Department of the Navy, Board for Correction of
Naval Records,
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Defendant.
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APPEARANCES:
Robert R. Mosley
Plaintiff, pro se

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Office of the United States Attorney
Charles E. Roberts, Esq., Assistant United States Attorney
P.O. Box 7198
100 South Clinton Street
Syracuse, New York 13261-7198
Attorney for Defendants.

Norman A. Mordue, United States District Judge:
MEMORANDUM-DECISION AND ORDER
In this pro se action, plaintiff asks the Court to review administrative actions by
defendant, the Board for Correction of Naval Records (“BCNR”), and to compel the BCNR to
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“correct and upgrade [his] military records and change his discharge from other than honorable
conditions to honorable conditions.” Defendant moved (Dkt. No. 29) to dismiss the amended
complaint (Dkt. No. 28) as time-barred, on the ground that its denial of plaintiff’s application to
upgrade his status was issued in 2003. This Court denied the motion (Dkt. No. 57), finding that
the amended complaint could reasonably be read as including a request for judicial review of the
BCNR Executive Director’s 2006 and 2010 decisions denying plaintiff’s applications for

reconsideration.
Thereafter, defendant moved (Dkt. No. 62) to remand the matter to the BCNR. On
December 5, 2011 this Court issued a Memorandum-Decision and Order (Dkt. No. 85) denying
the motion for remand unless, within 15 days, defendant notified plaintiff and the Court that it
conceded one (or both) of the following points:
the reconsideration procedure in 32 CFR 723.9 was not authorized because,
under 10 U.S.C. § 1552, only the BCNR is authorized to determine whether
reconsideration applications contain new, material evidence or other matter
warranting reconsideration, and thus the 2006 and 2010 determinations are
vacated and plaintiff’s applications shall be forwarded to the BCNR for
decision whether the reconsideration applications contain new, material
evidence or other matter warranting reconsideration; or

2.

plaintiff’s applications contain new, material evidence or other matter
warranting reconsideration, and thus the 2006 and 2010 determinations are
vacated and plaintiff’s applications shall be forwarded to the BCNR for
decision on the merits.

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1.

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The Court has held in abeyance all other pending motions and requests (Dkt. Nos. 59, 66, 67, 70,
73, 74, 76, 82, and 83).
On December 20, 2011, defendant submitted a status report (Dkt. No. 88) advising that
“defendant will concede point number 2 in that ‘plaintiff’s applications contain new, material
evidence or other matter warranting reconsideration, and thus the 2006 and 2010 determinations

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are vacated and plaintiff’s applications shall be forwarded to the BCNR for decision on the
merits.’” Based on this concession, the Court grants defendant’s motion for remand. The Court
grants plaintiff’s summary judgment motion (Dkt. No. 66) only to the extent of vacating the 2006
and 2010 determinations and directing that plaintiff’s applications be forwarded to the BCNR for
decision on the merits in accordance with defendant’s status report (Dkt. No. 88). Plaintiff’s
summary judgment motion is otherwise denied.
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As a result of the vacatur of the 2006 and 2010 determinations and the remand to the
BCNR, plaintiff has received all of the relief to which he is entitled in this action. After the
BCNR issues its rulings on the merits of his 2006 and 2010 applications, and after exhausting any
available administrative remedies, if plaintiff wishes to obtain judicial review of the rulings, he
must begin a new lawsuit.
It is therefore
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ORDERED that defendant’s motion for remand (Dkt. No. 62) is granted as set forth
below, based on defendant’s concession in its status report (Dkt. No. 88); and it is further
ORDERED that plaintiff’s 2006 and 2010 applications contain new, material evidence or
other matter warranting reconsideration, and thus the 2006 and 2010 determinations are vacated
and the applications shall be forwarded to the BCNR for decision on the merits; and it is further

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ORDERED that plaintiff’s motion (Dkt. No. 66) for summary judgment is granted only to
the extent of vacating the 2006 and 2010 determinations and directing that the applications be
forwarded to the BCNR for decision on the merits in accordance with defendant’s status report
(Dkt. No. 88); and the summary judgment motion is otherwise denied; and it is further
ORDERED that plaintiff’s letter motion (Dkt. No. 82) is denied; and it is further
ORDERED that all other pending motions and requests (Dkt. Nos. 59, 67, 70, 73, 74, 76,

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and 83) are denied as moot; and it is further
ORDERED that this case is closed.
IT IS SO ORDERED.
Date: December 29, 2011
Syracuse, New York

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