Hiles v. Army Review Board Agency et al

Filing 67

ORDER adopting Report and Recommendation (doc. 38) as modified. The Report and Recommendation is modified to reflect that this Court has subject matter jurisdiction to review the decisions of the ABCMR. Count I is not dismissed at this time; Defen dants Motion to Dismiss (doc. no. 15) is GRANTED as to plaintiffs second, third, fourth, fifth and sixth claims against defendants. Defendants Motion to Dismiss (doc. no. 15) is DENIED with respect to plaintiffs first claim. Plaintiffs Motion to Admi t New Evidence (doc. no. 58) is DENIED. Plaintiffs Second, Third, Fourth, Fifth and Sixth claims are DISMISSED WITH PREJUDICE. Plaintiffs First claim is RECOMMITTED to the United State Magistrate for further proceedings according to the principles of administrative law. Signed by Judge Herman J. Weber on 9/16/14. (mb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MARSHALL G. HILES,
Plaintiff
v.

C-1-12-673

ARMY REVIEW BOARD AGENCY, et al.,
Defendants
ORDER
This

matter

is

before

the

Court

upon

the

Report

and

Recommendation of the United States Magistrate Judge (doc. no. 38),
plaintiff’s objections (doc. no. 41), defendants’ response (doc. no. 42)
and plaintiff’s reply (doc. no. 43).

A hearing on the Report and

Recommendation and objections was held October 16, 2013.

Also

before the Court is the plaintiff’s Post Hearing Brief (doc. no. 52),
defendants’ response (doc. no. 53) and plaintiff’s reply (doc. no. 55).
Plaintiff Marshall G. Hiles, proceeding pro se, brings this action
individually and on behalf of the estate and heirs of his father, Charles
D. Hiles, deceased (hereafter “Hiles”), against a number of federal

agencies and departments.

Plaintiff names as defendants the Army

Review Board Agency (ARBA), the Army Board of Corrections of
Military Records (ABCMR), the Veterans Administration (VA), the
United States Army (Army), the Department of Defense (DOD) and the
Department of Veterans Affairs (DVA). Plaintiff’s Complaint sets forth
six

claims

for

relief

and

supporting

allegations,

exhibits,

and

arguments.
In his first claim, plaintiff requests the Court to review the
ABCMR decisions failing to correct Hiles’ military records to reflect the
full extent of the injuries Hiles suffered at the Battle of Peleliu in 1944.
Plaintiff’s second claim is for Veteran’s benefits from 1948 to
2006.
Plaintiff’s third and fourth claims are against the Army and DOD
for fraud and damages in the amount of $3,000,000.

Plaintiff’s fifth

claim is against the VA for fraud, fraudulent concealment and
monetary damages in the amount of $2,732,000 owed for back VA
benefits and expenses incurred over the years and $300,000 to
compensate plaintiff for his services.
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Plaintiff’s sixth claim requests an Order directing the DVA to
overhaul the entire VA claims and appeal system and to impose a
deadline for doing so.
The matter is before the Court on plaintiff’s objections to the
Report

and

Recommendation

of

the

Magistrate

Judge

granting

defendants’ Motion to Dismiss the Complaint pursuant to Fed. R. Civ.
P. 12(b)(1) for lack of jurisdiction over the subject matter of the
Complaint (doc. no. 15) and the recommendation the case be
dismissed and terminated on the docket of this Court.
Plaintiff further requests the Court reverse the Magistrate
Judge’s Orders denying plaintiff’s Motion to Admit and Extend (doc. no.
21), Motion to Stay and Extend (doc. no. 22), plaintiff’s Motion for Oral
Argument, Request for Hearing, Personal Appeal (doc. no 32), and
plaintiff’s Motion to Admit Legal Evidence and Addendum that
Supports All Claims (doc. no. 33).
Pursuant to its obligation to conduct a de novo review of the
Report and Recommendation in light of the objections, the Court held
a hearing on October 16, 2013 at which the plaintiff and counsel for
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defendants appeared and oral arguments were presented. Pursuant to
the record established at the hearing, the Court granted most of
plaintiff’s requests made in his motions.

Any further comment on

plaintiff’s motions and plaintiff’s objections to the Orders of the
Magistrate Judge denying the motions is unnecessary.
This lawsuit arises out of injuries Hiles sustained in World War II
during the 1944 Battle of Peleliu and the ongoing efforts by Hiles and
plaintiff to obtain fair disability ratings and just compensation for
those injuries, as well as plaintiff’s efforts to correct military records
generated during Hiles’ military service to accurately reflect the cause
and extent of Hiles’ injuries (doc. no 6).

Those efforts began after

Hiles’ 1946 honorable discharge when he made his initial claim for VA
benefits in 1948, and plaintiff has continued those efforts beyond
Hiles’ death in 2007.
Plaintiff brings his first claim for relief against the ARBA and the
ABCMR (doc. no. 6 at 424).
identification number.

Page references are to the ECF page

In support of this claim, plaintiff alleges the

Army falsely and fraudulently recorded Hiles’ head injuries received
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during the Battle of Peleliu in 1944, their cause, and when given his
discharge exam, fraudulently and falsely recorded on January 6, 1946,
that “everything was normal,” including Hiles’ “mental status.” (Id. at
425, 439).

Plaintiff alleges that as a result of the Army’s fraudulent

records, Hiles never received from the VA the proper health care he
required and the financial benefits to which he was entitled.

(Id.).

Plaintiff requests the Court order the ABCMR to correct Hiles’ military
records to reflect the full extent of the injuries Hiles suffered at the
Battle of Peleliu in 1944, particularly his head injuries.
The issue before the Court presented by plaintiff’s objections to
the dismissal of his first claim is whether this Court has subject matter
jurisdiction to review the July 25, 2012 decision by the ABCMR (doc.
52-1, pg. 260 of 306) (Page ID #1489), the denial of reconsideration of
the October 26, 2012 (doc. 52-1, pg. 276 of 306) (Page ID #1505) and
the no action letter of December 31, 2012 (doc. 22-1, pg. 1 of 2) (Page
ID #926).

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Piersall v. Winter, 435 F.3d 319, 321 (2006) advises:

[1] On appeal Piersall argues the district court
erroneously dismissed his case for lack of jurisdiction
and urges us to reach the merits of his challenge to
the Board's decision. We review de novo the district
court's grant of a motion to dismiss for lack of subject
matter jurisdiction. See Caribbean Broad. Sys., Ltd. v.
Cable & Wireless PLC, 148 F.3d 1080, 1085 (1998). We
begin with jurisdiction and conclude that Piersall's
claims are justiciable, but we do not reach the merits
of his claims.
A. Jurisdiction
These are not uncharted waters. We have many
times reviewed the decisions of boards for correction
of military records “in light of familiar principles of
administrative law.” See, e.g., Kreis v. Sec'y of the Air
Force, 866 F.2d 1508, 1511 (1989); see also **210
*322 Turner v. Dep't of Navy, 325 F.3d 310, 313–14
(2003); Musengo v. White, 286 F.3d 535, 538 (2002);
Cone v. Caldera, 223 F.3d 789, 793 (2000); Frizelle v.
Slater, 111 F.3d 172, 176 (1997); Dickson v. Sec'y of
Def., 68 F.3d 1396, 1400 (1995); Kidwell v. Dep't of the
Army, 56 F.3d 279, 286 (1995). In doing so we were
following the lead of the Supreme Court. See Kreis,
866 F.2d at 1512, in which we relied upon Chappell v.
Wallace, 462 U.S. 296, 303–04, 103 S.Ct. 2362, 76
L.Ed.2d 586 (1983) (indicating decisions of the BCNR
are “subject to judicial review and can be set aside if
they are arbitrary, capricious, or not based on
substantial evidence”).

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In Kreis we also acknowledged the “fundamental
and highly salutary principle” that “[j]udges are not
given the task of running the [military].” 866 F.2d at
1511 (quoting Orloff v. Willoughby, 345 U.S. 83, 93, 73
S.Ct. 534, 97 L.Ed. 842 (1953)); see also Gilligan v.
Morgan, 413 U.S. 1, 10, 93 S.Ct. 2440, 37 L.Ed.2d 407
(1973). In light of that principle, we held
nonjusticiable a serviceman's claim for retroactive
promotion. We held justiciable, however, the
serviceman's “more modest request” to review “the
reasonableness” of the decision of a military board of
correction pursuant to the standards of the APA.
Kreis, 866 F.2d at 1511. Review of that decision would
not interfere unduly with military matters because
“[a]djudication of [such] claims requires the district
court to determine only whether the Secretary's
decision making process was deficient, not whether
his decision was correct.” Id. In other words, such
review would not require the district court to
substitute its judgment for that of the Secretary ....
The court would only require the Secretary, on
remand, to explain more fully the reasoning behind his
decision and, with respect to his denial of a
retroactive promotion, to apply the appropriate legal
standard.

Id. At 1512.

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Pursuant to Piersall, the Report and Recommendation of the
Magistrate Judge is modified.

This Court has subject matter

jurisdiction to review the decisions of the ABCMR pursuant to the
standards of the APA.

Count I is not dismissed at this time.

The

Report and Recommendation is modified.
Upon de novo of plaintiff’s objections to the Magistrate Judge’s
Report and Recommendation dismissing his second claim for veteran
benefits, his third and fourth claim for damages, his fifth claim for
expenses and damages and sixth claim to mandamus the DVA
because the Court lacks subject matter jurisdiction, the Court finds his
objections have either been adequately addressed and properly
disposed of by the Magistrate Judge or present no particularized
arguments that warrant specific responses by this Court. The Court
finds

that

the

Magistrate

Judge

has

accurately

set

forth

the

controlling principles of law and properly applied them to the
particular facts of this case and agrees with the Magistrate Judge.

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Accordingly, the Court hereby ADOPTS AND INCORPORATES BY
REFERENCE HEREIN the Report and Recommendation of the United
States Magistrate Judge (doc. no. 38) AS MODIFIED.

Defendants’

Motion to Dismiss (doc. no. 15) is GRANTED as to plaintiff’s second,
third, fourth, fifth and sixth claims against defendants.

Defendants’

Motion to Dismiss (doc. no. 15) is DENIED with respect to plaintiff’s
first claim.

Additionally, plaintiff’s Motion to Admit New Evidence

(doc. no. 58) is DENIED because, pursuant to the foregoing, the Court
lacks subject matter jurisdiction over claims two and six. The alleged
new evidence is accepted as a proffer to the record by plaintiff, to
which defendants object.

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CONCLUSION
Plaintiff’s Second, Third, Fourth, Fifth and Sixth claims are
DISMISSED WITH PREJUDICE for lack of subject matter jurisdiction.
Plaintiff’s First claim is RECOMMITTED to the United State Magistrate
for further proceedings according to the principles of administrative
law.
IT IS SO ORDERED.

s/Herman J. Weber
Herman J. Weber, Senior Judge
United States District Court

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