Falana v. Department of Navy

          MEMORANDUM OPINION

          Reggie B. Walton United States District Judge

         The plaintiff, Michael A. Falana, brought this action pro se against the Department of the Navy (“Navy”) under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706 (2006), seeking review of the Board for Correction of Naval Records' (“BCNR”) denial of his application to correct his military records regarding his discharge. Petition for Review (“Pet.”), ECF No. 1. Following two remands to the agency, each party now seeks dispositive relief through (1) the Defendant['s] Motion to Dismiss for Lack of Subject Matter Jurisdiction and Motion for Summary Judgment (“Def.'s Mot.”), ECF No. 20, and (2) the plaintiff's Cross-Motion for Summary Judgment (“Pl.'s Mot.__”), ECF No. 23.^[1] After carefully considering the parties' submissions and the Administrative Record, ECF No. 19, Bates-numbered pages 1-1277 (hereafter “AR ”), the Court will grant the defendant's motion and deny the plaintiff's motion for the reasons that follow.

         I. BACKGROUND

         A. Disciplinary Actions

         The plaintiff served in the United States Marine Corps from February 23, 1988, to July 8, 1993, when he was discharged for bad conduct following a special court-martial in October 1991. See AR 332, 335, 386. The plaintiff had pleaded not guilty to multiple charges of violating the Uniform Code of Military Justice, including one charge of unauthorized absence (“UA”) from April 9, 1991, to April 21, 1991; four specifications of uttering a bad check with intent to defraud; and one charge of altering a public record on March 25, 1991. AR 77. The plaintiff was acquitted of the altering a public record charge and three of the four charges of uttering a bad check but was found guilty of three lesser-included offenses of failing to maintain sufficient funds, one count of uttering a bad check, and the UA charge. Id. The plaintiff was sentenced to a bad conduct discharge, five months of confinement, and reduction in pay grade to the rank of Private.^[2] AR 78, 279-80, 299; see also Defendant's Memorandum in Support of Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction and Motion for Summary Judgment (“Def.'s. Mem.”) at 1-2. The Navy-Marine Corps Court of Military Review affirmed the plaintiff's court-martial and sentence on December 16, 1992. Def.'s Mem. at 2-3.

         B. Requests for the Correction of Records

          On February 21, 2009, the plaintiff applied to the BCNR for an upgrade of his discharge from bad conduct “to general discharge under honorable conditions.” AR 332. The BCNR denied the plaintiff's application on March 25, 2010, finding the plaintiff's “evidence . . . insufficient to establish the existence of probable material error or injustice.” AR 386. On September 28, 2012, the plaintiff applied again for an upgrade, alleging a host of “error[s]” and “injustice[s]” in the record of the special court-martial. AR 398-411. The BCNR treated that application as a request for reconsideration of its March 25, 2010 decision and denied it on December 18, 2012, explaining: “Although, at least some of the evidence you have submitted is new, it is not material. In other words, even if this evidence was presented to the Board, the decision would inevitably be the same.” AR 394.

         C. Initiation of Lawsuit and Remand to the Department

         The plaintiff filed this lawsuit in January 2014. In early July 2014, the Court granted the defendant's motion to remand the proceedings to the BCNR to consider “all of the plaintiff's alleged errors and to issue a decision and grant any appropriate relief[.]” July 2, 2014 Minute Order. The Court therefore stayed these proceedings for six months. On February 2, 2015, the agency filed with the Court the BCNR's subsequent decision, noting that the “decision granted, in part, and denied, in part, the relief sought by [the p]laintiff.” Notice of Filing of Agency Decision after Remand, ECF No. 10. Specifically, the plaintiff's records were corrected “to reflect a seven day period of [unauthorized absence] instead of a nine day period . . ., and the awarding of a Pistol Marksman Badge, but not that of a Pistol Expert Badge, ” as the plaintiff had requested. Id., Exhibit (“Ex.”) 1 (Dec. 11, 2014 Decision) at 3.

         On February 23, 2015, the plaintiff moved for a second remand, which the defendant did not oppose. Therefore, the Court granted the plaintiff's motion, remanded the case, and again stayed these proceedings for another six months. See July 14, 2015 Minute Order. The agency filed with the Court the BCNR's subsequent decision on August 12, 2016, noting that “[s]ome, not all, of the relief [the p]laintiff sought has been granted.” Notice of Filing of Agency Decision after Second Remand, ECF No. 15; AR 458-463 (“July 1, 2016 Decision”).

         In this second decision, the BCNR addressed each of the plaintiff's eleven alleged errors or injustices and concluded:

In view of the foregoing, the majority finds the existence of an injustice warranting the following partial corrective action.

MAJORITY RECOMMENDATION:

a. That Petitioner's naval record be corrected to remove the NJP from 15 March 1989.

b. That the corrections to Petitioner's record pertaining to 7 days of unauthorized absence instead of 9 days, and the addition of the Pistol Rifle Badge remain.

c. That a copy of this Report of Proceedings be filed in Petitioner's naval record.

d. That no further relief be granted.

e. That, upon request, the Veterans Administration be informed that Petitioner's applications were received in 2009, 2012, and that following judicial proceedings, ...