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Sakievich v. United States

United States District Court, District of Columbia

February 5, 2016



AMY BERMAN JACKSON United States District Judge

Plaintiff Lieutenant Colonel Thomas V. Sakievich has brought this action against the United States, seeking to set aside certain decisions of the Department of the Navy’s Board for the Correction of Naval Records (“BCNR”) as arbitrary, capricious, unsupported by evidence, and contrary to law, pursuant to 10 U.S.C. § 1552 and the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq. Compl. [Dkt. # 1] . He asks the C ourt t o order the BC NR to am end his military record in several respects and to direct the BCNR to promote him to Colonel, backdated to July 2004. Compl., Relief, at 18. Defendant has moved to dismiss plaintiff’s claims pursuant to Federal Rule of Civil Procedure 12(b)(1), on the grounds that plaintiff’s requests for relief are not justiciable and that plaintiff has failed to exhaust his administrative remedies. Def.’s Mot. to Dismiss [Dkt. # 9] (“Def.’s Mot”); Mem. of P. & A. in Supp. of Def.’s Mot. [Dkt. # 9] (“Def.’s Mem.”). The Court agrees that it can only review the reasonableness of the BCNR’s decisions, and cannot award plaintiff the corrective relief he seeks. It also finds that plaintiff has failed to exhaust his administrative remedies as required by 10 U.S.C. § 1558(f). For those reasons, defendant’s motion to dismiss will be granted.


Plaintiff is a retired United States Marine Corps Lieutenant Colonel with a long history of military service, and his complaint contains a number of challenges to decisions made by the Marine Corps with regard to his military record and his terms of service. Compl. ¶¶ 2, 8-91. The Court will set forth only that portion of the factual background and procedural history that is relevant to resolving defendant’s motion to dismiss.

Plaintiff enlisted in the Marine Corps on April 17, 1975 and served four active duty years in the infantry, obtaining the rank of Sergeant. Compl. ¶ 8. From April 1979 through April 1981, plaintiff served in the Marine Corps Reserve. Id. ¶ 9. In December 1982, he graduated from the Marine Corps Officer Candidate School and was commissioned on active duty as a Second Lieutenant. Id. ¶ 10-11. He received several promotions and positive Fitness Reports over this period. Id. ¶¶ 9, 11, 14-15. Plaintiff left active duty and accepted reserve duties in 1986. Id. ¶ 12.

On March 1, 1987, plaintiff began a two-year tour in the Full-Time Support (“FTS”) program, a Marine Corps Reserve program which placed reservists on active duty orders for periods of up to four years. Compl. ¶ 16 & n.2. On June 3, 1988, plaintiff was approved for another FTS tour through August 21, 1991. Id. ¶ 19. He again received largely positive Fitness Reports throughout this period, and was promoted to Captain. Id. ¶¶ 17-18, 20-21, 25. However, plaintiff believed that some of the Fitness Reports were “erroneous and unjust, ” and on January 14, 1991, he asked the BCNR to remove two of the Fitness Reports from his record. Id. ¶¶ 26, 28. The BCNR referred this request to the Performance Evaluation Review Board (“PERB”). Id. ¶ 29.

While that referral was pending, plaintiff applied for another active duty tour in the FTS program, and the FTS Selection Board was convened on March 12, 1991. Compl. ¶¶ 30, 32. At that time, plaintiff’s military record still contained the two reports plaintiff had petitioned to have removed, and it was also missing a positive report that plaintiff had previously resubmitted to the Marine Corps. Id. ¶ 33. Despite the fact that the PERB found in plaintiff’s favor and ordered the two reports removed from his record on March 13, 1991, the FTS Selection Board was not notified of those changes. Id. ¶¶ 34-35. On April 1, 1991, the FTS Selection Board denied plaintiff’s application for an extension on FTS, and plaintiff attributes that result to the failure to correct his military record. Id. ¶ 36. Plaintiff states that he “protested the incorrect findings of the FTS Selection Board, ” but “was notified by Marine Corps seniors that he had no recourse, ” and he was honorably released from active duty on August 31, 1991. Id. ¶ 37.

In March 1992, plaintiff received a copy of his military record, and he “discovered [that] numerous records were either missing or incorrect.” Compl. ¶ 40. He repeatedly contacted the Marine Corps Headquarters in an effort to correct his record, and on May 28, 1992, he reapplied for the FTS program and included the missing record documents as part of his application, along with “numerous supporting recommendations” from his superiors. Id. ¶ 41-43. On August 6, 1992, plaintiff was notified that he had been selected as an alternate for the FTS program. Id. ¶ 44.

In September 1992, at the end of his contracted period of service, plaintiff was honorably released from active duty. Compl. ¶ 47. In 1993, plaintiff obtained civilian employment and continued his reserve service. Id. ¶ 48. He continued to receive positive Fitness Reports and in September 1994, he was promoted to Major. Id. ¶¶ 46, 49-50. Between July 1995 and December 1995, plaintiff again requested a copy of his military record and undertook significant efforts to locate and provide records that were missing from his file. Id. ¶¶ 51-54. He also contacted Marine Corps officials to voice his concerns that the records that were submitted to the FTS Selection Boards in 1991 and 1992 were incomplete and that the omissions affected his applications. Id. ¶ 54. He was told to keep applying to the FTS Selection Boards. Id.

On December 18, 1995, plaintiff applied to the Active Reserve (“AR”) program, which had replaced the FTS program that year. Compl. ¶¶ 16 n.2, 55. On February 15, 1996, he was notified that he was not “a grade and/or ‘hard-skill’ MOS [Military Occupational Specialty] match” for the AR program, and would be considered “as an alternative.” Id. ¶ 56. Shortly thereafter, plaintiff discovered that the two Fitness Reports that had been ordered removed by the PERB in March 1991 were included in his file and had been considered by the AR Accession Board. Id. ¶ 57. Plaintiff attempted to correct this error, but in March 1996, he was informed that he was not selected for the AR program. Id. ¶¶ 58-59.

Plaintiff continued his reserve service, and he reapplied for the AR program on July 21, 1999, but he was not selected because “[t]he highest grade the AR program would allow were specific flight trained Majors.” Compl. ¶¶ 60-63. On August 1, 1999, plaintiff was promoted to Lieutenant Colonel, and in April 2000, a senior Marine Corps official specifically requested that the rank requirement be waived and that plaintiff be approved for active duty with the AR program. Id. ¶¶ 64-65. On August 9, 2000, the next AR Accession Board convened, and plaintiff was selected for the AR program. Id. ¶¶ 67-68. However, he was informed that accepting the assignment “would essentially forfeit [his] opportunity to be promoted to the rank of Colonel in the AR, ” because he would be compared to Marines who had more years of experience in the program. Id. ¶ 67 & n.11. Plaintiff “expressed frustration that but for [Marine Corps Headquarters’] mishandling of his records, he would have been retained in the FTS/AR program and had a competitive career pattern for AR Colonel, ” but he nevertheless accepted the AR assignment in September 2000. Id. ¶¶ 67 n.11, 69.

In January 2003, plaintiff applied for career designation in the AR program, meaning he would no longer need to reapply to the program, and his request was approved. Compl. ¶ 74. In August 2003, plaintiff applied for promotion to Colonel, but in October 2003, he learned that he did not receive the promotion. Id. ¶ 75. In his view, this was due to “his fragmented career, late reassignment back to the AR (formerly FTS), [the Marine Corps Headquarters’] mishandling of his professional records, and his multiple forced moves from one promotion track to another.” Id. He reapplied for the promotion in September 2004, but was again rejected. Id. ¶¶ 78-79.

In July or August 2005, plaintiff was asked by Marine Corps Headquarters to retire voluntarily. Compl. ¶ 81. He was informed that if he declined to do so, he could be involuntarily retired. Id. Plaintiff states that he retired on November 1, 2006, “under constraint and against his intentions to remain on active duty to at least January 1, 2011.” Id. ¶¶ 82, 84.

On September 27, 2010, plaintiff was advised as part of his civilian employment that he could petition the BCNR for relief of “over seven lost years of active duty with the FTS/AR program, due to the mishandling of his professional files, ” and on November 15, 2010, he petitioned the BCNR for relief. Compl. ¶¶ 85-86. The Marine Corps Headquarters Reserve Affairs Division issued an Advisory Opinion to the BCNR on February 11, 2011, recommending that plaintiff’s request be denied on the grounds that he “was not competitive to be assigned to the FTS program in 1991 nor the AR program in 1996.” Id. ¶¶ 87-88. Plaintiff submitted a rebuttal to that opinion on March 15, 2011, but on April 5, 2011, the BCNR denied his request for relief, stating that “the evidence does not show you[r] non-selection for the program was erroneous or unjust or that any fitness reports should be removed from your record.” Id. ¶¶ 89-90.

In January 2013, plaintiff requested that the BCNR reconsider his request, and he submitted new evidence in support of his petition, including statements from several superior officers who had previously served as members of a selection board. Compl. ΒΆ 91. ...

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