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Mortega v. Dep't of Defense

March 20, 2007

BENICIO AGUILAR MORTEGA, PLAINTIFF,
v.
DEPARTMENT OF DEFENSE., DEFENDANT.



The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge

MEMORANDUM OPINION

This matter is before the Court on defendant's motion to dismiss or, in the alternative, for summary judgment. Having considered defendant's motion, plaintiff's opposition, and the record of this case, the Court will grant summary judgment for defendant.

I. BACKGROUND

A. Bad Conduct Discharge Plaintiff, a citizen of the Philippines, enlisted in the United States Navy in 1974. See Complaint ("Compl.") at 1, 4, 9 (page numbers designated by the Court); A.R. 5 (Findings of Fact).*fn1 On February 20, 1976, plaintiff "reported back to the United States Naval Station Subic Bay, Philippines after about three (3) months of unauthorized absence." Compl. at 2. He was charged with a violation of Article 86 of the Uniform Code of Military Justice ("UCMJ"),*fn2 and the corresponding specification read as follows:

In that Seaman Recruit Benicio Aguilar MORTEGA, United States Navy, U.S. Naval Station, Subic Bay, Philippines, former attached to USS MANLEY (DD 940), did, on or about 0730, 01 December 1975, without authority, absent himself from his unit, to wit: USS MANLEY (DD 940), then located at U.S. Naval Station, Philadelphia, Pennsylvania, and did remain so absent until on or about 1530, 20 February 1976.

C.M. 62 (Charge Sheet).*fn3

A special court martial convened on April 13, 1976 at which plaintiff was represented by appointed military counsel. C.M. 51, 57-58. The presiding military judge granted plaintiff's request that he be tried before a military judge alone. C.M. 59-60. Plaintiff entered a guilty plea to the charge and specification, and was sentenced to a bad conduct discharge. C.M. 69-73, 83. The Convening Authority approved the sentence on May 4, 1976. C.M. 15. The United States Navy Court of Military Review affirmed the sentence on July 7, 1976, and on November 8, 1976, the Court of Military Appeals denied plaintiff's petition to consider his case. C.M. 13. The discharge became effective on March 9, 1977. See A.R. 1.

B. Applications for Correction of Naval Records

In May 1982, plaintiff submitted an application to the Board for Correction of Naval Records ("BCNR"). A.R. 14-15. He stated that the "adverse and inimical report of the [Navy] appears erroneous and totally absurd as against Equity and Good Conscience and therefore completely without justification." A.R. 14. Plaintiff specifically asserted that his discharge "should be recharacterized to General Discharge (Under Honorable [C]onditions). A.R. 15. The BCNR found that "the facts and circumstances of [plaintiff's] case fail to show that a material error or injustice has been suffered." A.R. 1. The application was denied on July 30, 1982. A.R. 1-2.

In April 1997, plaintiff again sought correction of his record to reflect an honorable discharge. A.R. 20-21. On June 27, 1997, the BCNR deemed reconsideration inappropriate, concluding that even the new material plaintiff submitted would not lead to a different outcome. A.R. 18.

In plaintiff's February 2001 application, he challenged the special court-martial's jurisdiction, claimed that he signed the plea agreement without full knowledge of its contents and consequences, and alleged the ineffective assistance of appointed counsel. A.R. 28-29. On these bases, plaintiff again sought "an upgrading of [his] discharge to honorable" and payment of back wages as if he had been "an ordinary enlisted man" in the interim. A.R. 29. He explained that he had suffered mental anguish, psychological depression, emotional distress and financial hardship because of the bad conduct discharge. A.R. 29-30. The BCNR denied reconsideration on March 6, 2001. A.R. 24.

Plaintiff submitted his latest application to the BCNR on April 27, 2005. A.R. 33. He sought "consideration . . . to change the status of [his] discharge . . . through [the Navy's] amnesty program." A.R. 33. He stated that his "claim for non-service connected disability pension benefits" was denied. A.R. 33. Again, on June 15, 2005, the BCNR denied reconsideration. A.R. 31.

C. Plaintiff's Demands for Relief

According to plaintiff, detailed military defense counsel coerced him into signing the plea agreement by assuring him that he would not be discharged, when he had know knowledge of his rights. Compl. at 3. Further, plaintiff alleges that the commanding officer of the Subic Bay Naval Station ...


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