United States District Court, District of Columbia
COLLEEN KOLLAR KOTELLY UNITED STATES DISTRICT COURT JUDGE
matter is before the Court on Defendant's Motion to
Dismiss, ECF No. 16. For the reasons discussed below, the
motion is granted.
entered the United States Air Force on July 6, 1971. Compl.
at 2. His short career has been summarized as follows:
On 10 July 71, [plaintiff] went absent without leave (AWOL)
and voluntarily surrendered himself to authorities on 17 Jul
71. He was punished under Article 15, Uniform Code of
On 19 Aug 71, [plaintiff] provided a statement indicating
that he had a serious personal problem and that he was a
homosexual. He further stated that he had engaged in numerous
acts with other homosexuals prior to entering active duty and
that he had been tempted to engage in homosexual acts while
in the service.
On 20 Aug to 17 Oct 71, he was placed in an AWOL status, and
on 18 Sep 71, he was declared a deserter. On 18 Oct 71, he
was apprehended by civil authorities and turned over to
military control on 28 Oct 71.
On 12 Nov 71, after consulting counsel, [plaintiff] requested
discharge for the good of the service. He signed a statement
indicating he understood an undesirable discharge may deprive
him of veterans' benefits and he may encounter
substantial prejudice in civilian life. He further stated
that he had used Lysergic Acid Diethylamide (LSD) about five
or six times prior to entering the Air Force and, if
standards had been different, he would not have been accepted
into the military. Lastly, he was told he could be discharged
for a character and behavior disorder (emotionally unstable
personality based on drug use) . . .
The staff judge advocate . . . recommended discharge with an
undesirable discharge .... On 17 Nov 51 [sic], the discharge
authority concurred and directed discharge.
[Plaintiffs] DD Form 214 reflects he was discharged on 2 Dec
71, with a UOTHC discharge ....
Mem. of Law in Support of Def.'s Mot. to Dismiss
("Defs.' Mem."), Ex. A at 1-2; see
Compl. at 2. The Air Force Discharge Review Board
reconsidered the matter, and on March 20, 1972, and the
Secretary of the Air Force denied plaintiffs application for
a change in the type or nature of his discharge. Defs.'
Mem., Ex. B.
August 10, 2010, plaintiff applied for correction of his
military record. Id., Ex. C. He was under the
impression that his undesirable discharge would have been
upgraded automatically after seven years to an honorable
discharge under Air Force standards in effect in the 1970s.
Id. Plaintiff sought an upgrade to a general
discharge. Id. The Air Force Board for Correction of
Military Records ("AFBCMR") denied the application
on March 15, 2011, based on its determination that "the
evidence [plaintiff] presented did not demonstrate the
existence of material error or injustice." Id.,
Ex. D. It also denied plaintiffs request for reconsideration
because plaintiff "provided no new relevant
evidence." Id., Ex. E.
October 5, 2014, plaintiff applied for an upgrade to either
an honorable or a general discharge, Compl. at 2, 4, and his
application was treated as a request for reconsideration of
his previous AFBCMR case, see id., Ex. C. Plaintiff
requested that his discharge be upgraded to honorable or
general because of a pre-existing condition he had at the
time of his enlistment and discharge, namely birth defects of
his spine. See generally id., Ex. F. On April 5,
2016, the AFBCMR denied ...