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SMITH v. DALTON

May 28, 1996

LCDR EDWARD S. SMITH, JR., Plaintiff,
v.
THE HONORABLE JOHN H. DALTON, United States Secretary of the Navy, and BOARD FOR CORRECTION OF NAVAL RECORDS, Defendants.



The opinion of the court was delivered by: URBINA

 Denying the Defendants' Motion to Dismiss; Denying the Parties' Motions for Summary Judgment and Remanding Case to the Board for Correction of Naval Records

 This matter comes before the court upon defendants' motion to dismiss or in the alternative for summary judgment; plaintiff's' opposition and cross-motion for summary judgment; defendants' opposition; and the parties' replies. Presently, the court must determine whether this forum provides proper venue, and whether the defendants acted arbitrarily and capriciously when they denied the plaintiff's application for correction of his service record without a hearing. The court concludes that venue is proper in the District of Columbia since the Secretary of the Navy can have more than one residence for the purpose of venue. The court further concludes that at this juncture it cannot determine whether the defendants' decision not to correct the plaintiff's record was contrary to the applicable legal principles. Accordingly, the court remands this action to the Board for Correction of Naval Records for farther proceedings and with instructions as outlined below.

 I. BACKGROUND

 The uncontroverted facts indicate that on December 23, 1994, the plaintiff (Lieutenant Commander Edward S. Smith, Jr. USN (Retired)) (LCDR Smith) filed a complaint in this court against the United States Secretary of the Navy and the Board for Correction of Naval Records (BCNR) pursuant to 10 U.S.C. § 1552 and 5 U.S.C. § 702, seeking declaratory relief. *fn1" On October 5, 1990, the plaintiff applied to the BCNR for a service record correction. The plaintiff proffered that past marital problems and records of hospitalization for mental illness could have had a detrimental effect on his career. He sought removal of the decisions of the Promotion Boards refusing to promote him for the fiscal years 1987 through 1992. The plaintiff attached a seventeen page detailed affidavit and petitioned the BCNR to insert a corrective memorandum which would explain his circumstances as well as reflect a more favorable level of performance. *fn2" On June 20, 1991, after consideration of an advisory opinion from the Naval Military Personnel Command (NMPC) which concluded that the plaintiff's petition be denied, *fn3" the BCNR denied the plaintiff's petition. *fn4" On July 11, 1991, the plaintiff filed a "resubmission of application for correction of record with amendment." *fn5" This application included a request for promotion to the rank of Commander and an award of the difference in pay between Lieutenant Commander and Commander. *fn6" By a letter dated August 12, 1991, the BCNR again denied the plaintiff's petition. This denial letter cited a June 12, 1991 three-member panel BCNR decision which reviewed the plaintiff's application and found that "the evidence submitted was insufficient to establish the existence of probable material error or injustice." *fn7" The letter farther noted that the plaintiff was "entitled to have the Board reconsider its decision upon submission of new and material evidence of other matter not previously considered by the Board. *fn8"

 On April 29, 1993, the plaintiff filed another application for the correction of his Naval records, seeking an order that would require the removal of the decisions of the Promotions Boards refusing to promote him in fiscal years 1987 through 1992; that would retroactively promote him and award him back pay; and that would require the filing of a Certificate of Correction with his permanent Naval records indicating that the Navy made no finding that he suffers from any psychological disorder or mental illness. *fn9" This application was based on new information that the plaintiff obtained on June 26, 1993, as a result of a Freedom of Information Act (FOIA) request he submitted to the Department of the Navy. *fn10" The new information included allegations by the plaintiff's former wife, Ms. Emma-Jo, alleging that Mr. Smith suffered from depression and was a paranoid schizophrenic, as well as an admission that she had contacted Navy superiors and the psychologist intern who treated the plaintiff. *fn11"

 On October 4, 1993, the Bureau of Naval Personnel issued an advisory opinion which recommended denial of the plaintiff's request. *fn12" On November 30, 1993, a concurring advisory opinion was issued by the same office. *fn13" On July 26, 1994, in a sworn affidavit, Ms. Emma-Jo formally retracted her derogatory statements about the plaintiff. This sworn affidavit was sent to the defendants with an attached synopsis, dated August 21, 1994, setting out the importance of the new information. *fn14" Finally, on October 7, 1994, the BCNR issued a decision denying the plaintiff's April 29, 1993 application for correction. The Board concurred with the two advisory opinions issued by the Bureau of Naval Personnel. *fn15" The Board stated that the "evidence submitted was insufficient to establish the existence of probable material error or injustice." *fn16" This action followed.

 The plaintiff seeks a correction of his service record in order to remove prejudicial material concerning his mental health and personal history which he believes adversely affected his ability to secure civilian employment. The plaintiff further asks that the defendants include information in his record that will reflect a more favorable level of performance. Specifically, the plaintiff requests: (1) a declaration from the court stating that the BCNR acted arbitrarily and capriciously by denying his application for correction of service records without a hearing; (2) a remand of his application for correction of service records to the Naval Corrections Board, with directions to hold a further hearing on his application; and (3) an award of reasonable costs and attorneys' fees.

 On March 20, 1995, the defendants submitted a motion to dismiss for lack of venue or, in the alternative, a motion for summary judgment. On April 10, 1995, the plaintiff filed an opposition to defendants' motion and a cross-motion for summary judgment.

 II. LEGAL STANDARDS

 A. Federal Rule of Civil Procedure 12

 The defendants have moved to dismiss the plaintiff's complaint on the grounds of improper venue. Fed.R.Civ.P. 12(b)(6) provides, however, that a complaint shall not be dismissed unless "the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." *fn17" When reaching its conclusion, the court may only look to the plaintiff's complaint, items in the record of the case, and matters of public record. *fn18" Furthermore, the complaint must be liberally construed in the plaintiff's favor, including any inferences derived from the factual allegations. *fn19" However, the court need not accept inferences unsupported by the facts. *fn20" Moreover, the court is not mandated to accept the plaintiff's legal conclusions. *fn21" Applying these standards, the court rules that the defendants' motion to dismiss shall be denied inasmuch as proper venue lies in this jurisdiction.

 B. Federal Rule of Civil Procedure 56

 The parties have filed cross-motions for summary judgment. The defendants claim that their decisions not to promote the plaintiff, not to correct his records, and not to conduct a hearing on the matter do not violate the applicable legal standards. The plaintiff, on the other hand, contends that the defendants' actions are arbitrary and capricious and, therefore, should be reversed. Fed.R.Civ.P. 56(c) provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." *fn22" The court must view the facts and any permissible inferences drawn from them in a light most favorable to the non-moving party. *fn23" A material fact is a fact that the substantive law labels as possibly affecting the outcome of the suit. *fn24" "Consequently, the presence of a material fact is predicated on the existence of a legal theory that is viable under the non-moving party's version of the facts." ...


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