Alford v. Mabus et al

Filing 43

ORDER granting 24 Motion to Remand, denying 39 Motion to Strike, and dismissing 14 Motion for Summary Judgment, 19 Motion, 27 Motion for Summary Judgment, 31 Motion for Default Judgment, 32 Motion for Default Judgment, 36 Motion to Remand, 37 Motion to Remand, 41 Motion for Summary Judgment, and 42 Motion for Summary Judgment. Signed by Chief Judge James C. Dever III on 1/10/2014. A copy of the order was mailed to the pro se plaintiff. (Sawyer, D.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:13-CV-15-D

CARLOS A. ALFORD,
Plaintiff,

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v.
SECRETARY OF THE NAVY,
RAY MABUS; BOARD FOR
CORRECTION OF NAVAL
RECORDS, 1 CHAIRMAN
W. DEAN PFEIFFER;
HEAD RECORDS SECTION,
MIRIAM WEATHERSBY,
Defendants.

ORDER

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Carlos A. Alford ("Alford" or ''plaintiff') enlisted in the Marine Corps in 1981, received
three non-judicial punishments, and was discharged in 1984 with an other than honorable discharge
for a pattern of misconduct. See Alford v. Pfeiffer, No. 7:11-CV-38-BR, 2012 U.S. Dist. Lexis
21153, at *1-2 (E.D.N.C. Feb. 21, 2012) (unpublished). In 1985, Alford enlisted in the Marine
Corps again after concealing his previous discharge, but received a bad conduct discharge in 1988
at a special court-martial for two periods of unauthorized absence totaling 327 days. See Compl.
[D.E. 11] Ex. 25, p. 7,

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(ii). During Alford's second enlistment, he committed other offenses,

including concealing his first period of service and his 1984 discharge and being absent from his
appointed place of duty. See id. In December 1985, he received non-judicial punishment for these
offenses. See id.
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The complaint states Board of Corrections. The proper name is Board for Correction of
Naval Records ("BCNR").

Since 1988, Alford has filed numerous unsuccessful petitions with the BCNR challenging
his discharge. See Alford, 2012 U.S. Dist. Lexis 21153, at *6-7. He claims that the BCNR denied
his request for a medical discharge in April 2004 and provided a final denial decision in 2006. He
also claims that he petitioned the BCNR five times between June 21, 2009, and January 10, 2011,
without a response. See id. at *7.
On February 21, 2012, the Honorable W. Earl Britt of this court dismissed Alford's
complaint for failing to exhaust his intraservice administrative remedies. See id. at *7-11. In the
dismissal, the court determined that the BCNR should be allowed to consider the other matters
included in Alford's complaint dated after the fmal BCNR decision was made. See id. For example,
Alford submitted polygraph examination results regarding whether he had ever used marijuana while
in the Marine Corps, a medical record associated with his mental health examination on November
18, 2011, and a medical record associated with an examination on January 20, 2012, at the
Fayetteville VA Medical Center. See id.
On January 10, 2013, defendant Miriam Weathersby, who is head of the BCNR Records
Section, issued a letter to Alford denying reconsideration ofhis case by the BCNR. See Compl., Ex.
1. As a result, Alford filed his latest complaint in this court on July 19, 2013, requesting, inter alia:
1) his positive urinalysis be stricken from his service record book; 2) he be reinstated to the rank of
Lance Corporal and promoted to Corporal and Sergeant; and, 3) receipt of back pay and allowances,
to include pay for working extra duty and restriction. See Compl. In addition, Alford asks that both
his 1984 and 1988 discharges be upgraded to honorable. See id.
On August 23, 2013, defendants filed a motion to remand this matter to the BCNR for further
administrative consideration in accordance with 32 C.F.R. § 723.9. See [D.E. 24]. According to
defendants, remand will allow the BCNR to review the other matters included in Alford's complaint
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that the BCNR did not previously consider and permit the BCNR to make a final determination
based on all available information; See [D.E. 24, 25].
Remand is appropriate because the BCNR did not consider the other matters that Alford
provided in his petition, as contemplated in this court's order of February 21,2012. These matters
include: (1) the polygraph regarding marijuana use; (2) the mental health examination from
November 18, 2011; and, (3) the VA Medical Center examination on January 20, 2012.
Additionally, on remand, the BCNR also should consider any other matters presented that were not
previously considered. Permitting the BCNR to consider these matters will provide a more
complete and comprehensive administrative record, allow the BCNR to address the issues raised
and relief sought, and allow the BCNR to provide a thorough opinion regarding Alford's discharge
status.

See,~'

Alford, 2012 U.S. Dist. Lexis 21153, at *7-11.

In sum, defendants' motion to remand [D.E. 24] is GRANTED. This action is DISMISSED

without prejudice and REMANDED to the BCNR in order to allow full consideration of the record.
In light of this disposition, plaintiff's motions [D.E. 14, 19, 27, 31, 32, 36, 37, 41, 42] are

DISMISSED without prejudice. The court DENIES defendants' motion to strike [D.E. 39].
SO ORDERED. This 10 day of January 2014.

Chief United States District Judge

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