BLACK v. THE UNITED STATES ARMY et al

Filing 5

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 10/17/2013; that Plaintiff's Application for Leave to Proceed In Forma Pauperis and Affidavit/Declaration in Support (Docket Entry 1 ) is GRANTED FOR THE LIMITED PURPOSE OF ALLOWING THE COURT TO CONSIDER A RECOMMENDATION OF DISMISSAL. RECOMMENDED that this action be dismissed pursuant to 28 U.S.C. § 1915(e) (2)(B)(ii). (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

WILLIAM REID BLACK,
Plaintiff,
v.
THE UNITED STATES ARMY, et al.,
Defendants.

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1:13CV889

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This case comes before the Court on Plaintiff’s Application
for Leave to Proceed In Forma Pauperis (Docket Entry 1), filed in
conjunction with Plaintiff’s pro se Complaint (Docket Entry 2).1
The Court will grant Plaintiff’s request to proceed as a pauper for
the limited purpose of recommending dismissal of this action, under
28 U.S.C. § 1915(e)(2)(B)(ii), for failure to state a claim.
LEGAL BACKGROUND
“The federal in forma pauperis statute, first enacted in 1892
[and now codified at 28 U.S.C. § 1915], is intended to guarantee
that no citizen shall be denied access to the courts ‘solely
because his poverty makes it impossible for him to pay or secure
the costs.’”

Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 953

(4th Cir. 1995) (en banc) (quoting Adkins v. E.I. DuPont de Nemours
1

Plaintiff also filed a “Petition for Writ of Habeas Corpus”
(Docket Entry 2, Att. 1) and a “Show Cause Section (Attachment)”
(Docket Entry 4).

& Co., 335 U.S. 331, 342 (1948)).

“Dispensing with filing fees,

however, [is] not without its problems.
the statute

d[o]

not face

ordinary litigants.

the

same

Parties proceeding under
financial

constraints

as

In particular, litigants suing in forma

pauperis d[o] not need to balance the prospects of successfully
obtaining relief against the administrative costs of bringing
suit.”

Nagy v. Federal Med. Ctr. Butner, 376 F.3d 252, 255 (4th

Cir. 2004).
To

address

this

concern,

the

in

forma

pauperis

statute

provides, in relevant part, that “the court shall dismiss the case
at any time if the court determines that – . . . (B) the action or
appeal – . . . fails to state a claim on which relief may be
granted . . . .”

28 U.S.C. § 1915(e)(2).

A complaint falls short

when it does not “contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis added)
(internal citations omitted) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).

This standard “demands more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. In
other words, “the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions.

Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”

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Id.2

The Court may also anticipate affirmative defenses that

clearly appear on the face of the complaint, such as a claim barred
by the applicable statute of limitations.

Nasim, 64 F.3d at 955;

Todd v. Baskerville, 712 F.2d 70, 74 (4th Cir. 1983).
DISCUSSION
Plaintiff’s Complaint names five defendants: the United States
Army, current Secretary of the Army John McHugh, former Secretary
of the Army Thomas White (from 2001 to 2003), Army Chief of
Congressional Activities and Special Actions Rick A. Schweigert,
and Captain Pulson, Plaintiff’s commanding officer in the 1950s.
(Docket Entry 2 at 1.)

It challenges Plaintiff’s 1957 discharge

from the Army as discriminatory and seeks a discharge upgrade,

2

Although the Supreme Court has reiterated that “[a] document
filed pro se is to be liberally construed and a pro se complaint,
however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers,” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (internal citations and quotation
marks omitted), the United States Court of Appeals for the Fourth
Circuit has “not read Erickson to undermine Twombly’s requirement
that a pleading contain more than labels and conclusions,”
Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir. 2008)
(internal quotation marks omitted) (applying Twombly in dismissing
pro se complaint); accord Atherton v. District of Columbia Office
of Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (“A pro se
complaint . . . ‘must be held to less stringent standards than
formal pleadings drafted by lawyers.’
But even a pro se
complainant must plead ‘factual matter’ that permits the court to
infer ‘more than the mere possibility of misconduct.’” (quoting
Erickson, 551 U.S. at 94, and Iqbal, 556 U.S. at 679,
respectively)).
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reinstatement, and damages.

(Id. at 2-4.)3

The Complaint contains

the following factual allegations:
1) Plaintiff “was discriminated against by Capt. Pulson and
subordinate[s] acting under his command and instructions” (id.);
2) Plaintiff “was brought before a disciplinary hearing board,
convicted of false charges, and later [r]eleased from military duty
for reasons never fully recited to him, or for a minor violation
that should have resulted in company discipline (2 hour[s] extra
duty) (id.);
3) Plaintiff “was misled, lied to, and intentional[ly] denied
benefits that he had a right to receive over the past 55 years”
(id.);
4) Plaintiff “should have been reinstated, given back his
rank, his uniform, and dignity” (id.);
5) “if the [D]efendants had not[] lied, conspired[,] and
[i]llegally

separated

the

Plaintiff

from

the

military,

the

[P]laintiff could have found[] work to support[] himself and his
family, and some of the accusation[s] of criminal activity would
not have occurred years after your Plaintiff[’s] separation from
the Army” (id. at 3);

3

This Court previously dismissed for lack of subject-matter
jurisdiction a prior complaint filed by Plaintiff which also raised
matters related to his 1957 discharge. See Black v. Every, No.
1:10CV119 (M.D.N.C. Jan. 22, 2013) (unpublished).
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6) “[f]or the [p]ast 50 years, the Army has maintain[ed]
[Plaintiff’s] records [were] destroyed in a fire at [the] Army
Record Center” (id. at 2);
7) Plaintiff “was discharged Under Honorable Conditions, and
the military Army [t]ried to discredit your Plaintiff by claiming
otherwise” (id. at 3);
8) “Plaintiff offers statement[] and document (Exhibit B) that
after investigation by the Army, [Plaintiff] should have been
reinstated into the military” (id.);
9)

Plaintiff

has

attached

a

“Request

for

Waiver

of

Disqualification for Enlistment” form dated December 12, 1968, with
a box checked showing his discharge as “General Under Honorable
Conditions” (Docket Entry 2, Ex. A at 1) and describing Plaintiff
as “a good employee and citizen” based on reports from employers,
city officials, and acquaintances within Plaintiff’s community
(Docket Entry 2, Ex. B at 1); and
10)

Plaintiff

seeks

an

“order

[directing]

the

Army

to

reinstate your Plaintiff (William R. Black), [r]eturn his uniform
and medals (3)[,] . . . . offer [Plaintiff] an apology, []
calculate what rank [Plaintiff] would have attained and award him
monetary (money) to compensate for the los[s] he sustained during
that time[,] . . . . [and] offer the Plaintiff [p]unitive damages
(funds) for the [p]ains, [h]urts, and financial damages done [to]
him and his family for the past 50 years” (Docket Entry 2 at 4).

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As

an

initial

matter,

Plaintiff’s

Complaint

contains

no

allegations against two of the five named Defendants - that is,
Thomas White and Rick A. Schweigert - nor do these two Defendants
appear capable of granting Plaintiff his requested relief.

(See

id. at 1-4.)
The United States Army provides two administrative procedures
to challenge or modify a servicemember’s discharge.

First, the

Army Discharge Review Board (“ADRB”) may review and “change a
discharge or dismissal, or issue a new discharge, to reflect its
findings.”

10 U.S.C. § 1553(b); 32 C.F.R. § 581.2.

Second, the

Army Board for Correction of Military Records (“ABCMR”) may modify
records if “necessary to correct an error or remove an injustice.”
10 U.S.C. § 1552(a)(1); 32 C.F.R. § 581.3.

Whereas the ADRB may

consider only the type of discharge given to a servicemember, the
ABCMR may review the fact of the discharge itself.

See Watkins v.

United States Army, 541 F. Supp. 249, 254 (W.D. Wash. 1982).

In

general, a servicemember must exhaust available remedies through
the ADRB before seeking relief from the ABCMR.

32 C.F.R. §

581.3(d)(3); Ortiz v. Secretary of Def., 41 F.3d 738, 739 (D.C.
Cir. 1994).

Although servicemembers may seek judicial review of

final decisions by either board, see Peppers v. United States Army,
479 F.2d 79, 83 (4th Cir. 1973); Robinson v. Resor, 469 F.2d 944,
949 (D.C. Cir. 1972), courts may consider only whether the board’s
decision is arbitrary and capricious, Peppers, 479 F.2d at 83-84.

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In this case, the face of Plaintiff’s Complaint reveals that
the statute of limitations almost certainly bars his claim before
either board.

The Complaint’s supporting documents show that the

Army discharged Plaintiff on February 26, 1957.
Ex. A at 1.)

(Docket Entry 2,

A servicemember must bring a claim before the ADRB

within fifteen years of the date of discharge.

10 U.S.C. §

1553(a). Plaintiff’s Application for Correction of Military Record
(attached to his Complaint) indicates that he applied to review his
discharge on September 9, 2013 (Docket Entry 2, Ex. B at 2), fiftysix

years

later.

Similarly,

a

servicemember

must

request

correction with the ABCMR “within three years after he discovers
the error or injustice.”

10 U.S.C. § 1552(b).

The ABCMR “may

excuse a failure to file within three years after discovery if it
finds it to be in the interest of justice.”
C.F.R. 581.3(b)(4)(v).

Id.; see also 32

Plaintiff’s Application indicates that he

discovered the alleged error or injustice on March 17, 1959, fiftyfour years before the instant request for review. (Docket Entry 2,
Ex. B at 2.)

Although the courts have not defined “in the interest

of justice,” 10 U.S.C. § 1552(b), in practice the ABCMR has
considered both the servicemember’s reasons for delay as well as
the merits of the claim.

Dickson v. Secretary of Def., 68 F.3d

1396, 1405 n.12 (D.C. Cir. 1995).
Plaintiff’s Complaint does not set forth specific reasons to
support a waiver of the three-year statute of limitations for ABCMR

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claims.

(See Docket Entry 2 at 1-4.)

In response to a query

regarding such waiver, Plaintiff’s Application states only, “I have
filed [a]pplications, and petitions in different courts, from the
Army Broad [sic] of Inquiry, U.S. District Court, the U.S. Supreme
Court, and years of back and forth communication with the Army.”
(Docket Entry 2, Ex. B at 2.)

Although Plaintiff asserts he has

expended considerable effort in recent years to challenge his
discharge, his claim languished for decades.

(See Docket Entry 2

at

Second

2.)

In

a

case

considered

by

the

Circuit,

a

servicemember’s “dilatory pursuit” of relief - as demonstrated by
twelve years of inaction - convinced the court that the Air Force
Board for the Correction of Military Records did not abuse its
discretion in denying relief.

See Boruski v. United States Gov’t,

493 F.2d 301, 304 (2d Cir. 1974).

Further, Plaintiff’s claim does

not appear strong on the merits, considering that the Army declined
to consider a similar discharge-upgrade claim by Plaintiff in 2009
because Plaintiff’s military records were destroyed in the 1973
National Personnel Records Center fire and Plaintiff could not
produce copies of such records.

(See Docket Entry 2, Ex. D at 1

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(letter from Army Review Boards Agency to Plaintiff dated February
19, 2009).)4

In sum, given that over fifty years have passed since

Plaintiff’s discharge and his alleged discovery of the error, the
statute of limitations would bar a claim through the ADRB and
almost certainly foreclose review by the ABCMR.
Moreover, a servicemember cannot obtain judicial review of a
discharge without first exhausting administrative remedies.
Guerra v. Scruggs, 942 F.2d 270, 276 (4th Cir. 1991).

See

In the

instant case, Plaintiff has provided his Application for Correction
of Military Record dated September 9, 2013 (Docket Entry 2, Ex. B
at 1), and Plaintiff has not alleged that such recently commenced
administrative process has concluded (see Docket Entry 2 at 1-4).
Regardless, the Army informed Plaintiff in 2009 that it cannot
process his request for a discharge update unless he can produce
his military records.

(See Docket Entry 2, Ex. D at 1.)

The

Complaint confirms that Plaintiff does not have such records. (See

4

To the extent Plaintiff would assert that the records center
fire caused his delay, Plaintiff knew of the alleged error for over
a decade before the 1973 fire. (See Docket Entry 2, Ex. D, at 1.)
The D.C. Circuit found a similar argument about records destroyed
in the same fire unpersuasive because the statute of limitations
had expired before the fire. See Payne v. Brownlee, No. Civ.A.042175(RCL), 2006 WL 785296, at *2-3 (D.C. Cir. Mar. 24, 2006)
(unpublished). Nor does the military bear an absolute obligation
to produce such records. See, e.g., Cromer v. Nicholson, 455 F.3d
1346, 1351 (Fed. Cir. 2006) (ruling that Department of Veterans
Affairs only had to “make reasonable efforts” to locate claimant’s
records destroyed in same 1973 fire).
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Docket

Entry

2

at

2-3.)

Thus,

Plaintiff

has

not

exhausted

administrative remedies and, further, no complete record exists for
this Court to review.
As a final matter, to the extent Plaintiff’s Complaint asserts
a Bivens action against Captain Pulson for race discrimination (see
id. at 2; Docket Entry 2, Att. 1 at 3), the Feres doctrine would
bar such a claim.

See United States v. Stanley, 483 U.S. 669, 684

(1987) (“We hold that no Bivens remedy is available for injuries
that ‘arise out of or are in the course of activity incident to
[military] service’” (quoting Feres v. United States, 340 U.S. 135,
145 (1950))); Chappell v. Wallace, 462 U.S. 296, 297, 305 (1983)
(ruling that Navy enlisted men could not bring Bivens action
against superior officers for race discrimination).

Given that

over fifty years have passed, the three-year statute of limitations
would also foreclose such a claim.

See Reinbold v. Evers, 187 F.3d

348, 359 n.10 (4th Cir. 1999) (noting that forum state’s statute of
limitations for personal injury claims applies in Bivens actions);
N.C. Gen. Stat. § 1-52(5) (setting North Carolina’s statute of
limitations for personal injury at three years).
CONCLUSION
Plaintiff’s Complaint fails to state a claim.

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IT IS THEREFORE ORDERED that Plaintiff’s Application for Leave
to Proceed In Forma Pauperis and Affidavit/Declaration in Support
(Docket Entry 1) is GRANTED FOR THE LIMITED PURPOSE OF ALLOWING THE
COURT TO CONSIDER A RECOMMENDATION OF DISMISSAL.
IT IS RECOMMENDED that this action be dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii).
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
October 17, 2013

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