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Jackson v. Mabus

United States District Court, District of Columbia

January 30, 2013

Walter L. JACKSON, Jr., Plaintiff,
v.
Ray MABUS, Secretary of the Navy, Defendant.

Page 118

John B. Wells, Law Office of John B. Wells, Slidell, LA, for Plaintiff.

Wynne Patrick Kelly, U.S. Attorney's Office, Washington, DC, for Defendant.

Page 119

MEMORANDUM ORDER

BARBARA J. ROTHSTEIN, District Judge.

This matter is before the Court upon consideration of the parties' cross-motions for summary judgment. Plaintiff, Walter L. Jackson, Jr., a former enlisted member of the United States Navy, brings this action against the Secretary of the Navy. Jackson alleges, inter alia, that the Board for Correction of Naval Records (" BCNR" or " the Board" ), acting on behalf of the Secretary, acted arbitrarily and capriciously in violation of the Administrative Procedure Act (" APA" ), 5 U.S.C. § 701, et seq., when it declined to alter Jackson's military record. Jackson challenges both the Board's rejection of his initial claim, and its rejection of his request for reconsideration. Because the Court finds that the Board's decision to reject his request for reconsideration violated the APA, the Court will defer ruling on the motions for summary judgment and remand to the Board to address more completely Jackson's request for reconsideration.

I. BACKGROUND

Jackson enlisted in the Navy in 1989. Am. Compl. at ¶ 3, Dkt. No. 20. By 2005, Jackson had risen to the rank of first class petty officer (referred to as " E-6" ), and was stationed at U.S. Naval Computer and Telecommunications Station (" NCTS" ) Bahrain in support of naval operations in the region. Id. at ¶¶ 18, 47. While Jackson had had a successful 16-year military career, in 2005 Jackson began experiencing disciplinary problems. Administrative Record (" AR" ) 58, 126, 187, Dkt. No. 16. Jackson's troubles started when he was found guilty of absence without leave on November 27, 2005. AR 58. He was later found guilty of insubordination and received a permanent reduction in rank to E-5 on May 24, 2006. Am. Compl. at ¶ 47; AR 126. Following these incidents, Jackson's commanding officers recommended that Navy not re-enlist him and Jackson was ultimately discharged on July 18, 2006. Am. Compl. at ¶ 55.

On January 2, 2007, Jackson applied to the BCNR for correction of his military records, alleging that his commanding officers had improperly punished him for absence without leave and insubordination. AR 203-10. He requested, inter alia, that his former rank of E-6 be reinstated and that certain disciplinary actions be removed from his record. AR 210. A three-member civilian panel of the BCNR reviewed Jackson's application and denied it on May 7, 2007 finding no error in the actions of his commanding officers and agreeing with their recommendations that the Navy not re-enlist him. AR 602-04.

On September 11, 2007, Jackson filed a request for reconsideration with the Board. AR 262-77. The Board also received a large box full of binders containing supporting documentation. See AR 37. Apparently because of an oversight, the Board did not consider the materials in the box and the request for reconsideration together and rejected Jackson's request for reconsideration for lack of new or material evidence. See AR 37.

In 2010, Jackson commenced the present action against the Secretary of the Navy seeking to reverse the decision of the Board. Am. Compl. at ¶ 59. Jackson alleges, inter alia, that the Board violated the A PA by failing to provide sufficient reasoning or rely on substantial evidence when denying Jackson's initial application and his request for reconsideration.

In January 2011, Judge Henry Kennedy, the judge presiding over this case at the

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time,[1] with the consent of the parties, remanded the action to the BCNR to determine whether Jackson's binders contained any " new or material evidence." Order, Dkt. No. 5. Jackson's binders contained two new documents. Am. Compl. at ¶ 65. The first consisted of a report from an investigator hired by Jackson. AR 9-11. The second document consisted of the results of Jackson's polygraph examination which confirmed Jackson's view of events surrounding his absence without leave charge. AR 17-18. On September 28, 2011, a three-member panel ...


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