United States District Court, District of Columbia
MICHAEL A. FALANA, Plaintiff,
v.
DEPARTMENT OF NAVY, Defendant.
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,
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