MEMORANDUM OPINION
ROYCE
C. LAMBERTH UNITED STATES DISTRICT JUDGE
Plaintiff,
a federal prisoner appearing pro se, seeks review
under the Administrative Procedure Act (“APA”) of
decisions rendered by the Board for Correction of Naval
Records (“BCNR” or “Board”). Pending
is Plaintiff's Motion for Summary Judgment, ECF No. 23,
and Defendants' Motion to Dismiss Claim for Monetary
Relief and Cross Motion for Summary Judgment of All Other
Claims, ECF No. 26. Upon careful consideration of the
parties' motions and related filings, and the
Administrative Record (“AR”), ECF No. 26-1, the
Court will deny Plaintiff's motion, deny Defendants'
motion to dismiss as moot, and grant Defendants'
cross-motion for summary judgment, for the reasons explained
below.
I.
BACKGROUND
A.
Military Service and Discharge
Plaintiff
completed two honorable enlistments in the Navy from June 25,
1977 through April 12, 1981, and from April 13, 1981 through
December 18, 1984. AR 6. On April 11, 1983, during his second
enlistment, Plaintiff participated in an Alcohol Education
Course. Id. Plaintiff reenlisted a third time on
December 19, 1984. Less than two years later, on March 12,
1986, Plaintiff received non-judicial punishment
(“NJP”) for “drunkenness-incapacitation for
performance of duties, ” in violation of Article 134 of
the Uniform Code of Military Justice
(“UCMJ”).[2] AR 6, 92. Shortly after, Plaintiff was not
recommended for advancement in rank “due to minor
disciplinary infractions and a need for more development in
leadership.” AR 92.
From
October 26, 1987, to December 4, 1987, Plaintiff was admitted
to the Alcohol Rehabilitation Department at Naval Hospital
Beaufort, South Carolina. AR 104. While there, he was
selected for Petty Officer First Class. AR 93. Upon his
discharge from the hospital, Plaintiff purportedly received a
set of instructions that required him to, among other things,
undergo a supervised Antabuse regimen daily for one year. AR
105. The “Recommendations” included a statement
that “[m]ind/mood altering medications, in addition to
alcohol are distinctly contraindicated and should be
prescribed only very briefly, under close supervision, if at
all.” Id.
In
January 1988, Plaintiff was issued a written warning in which
he acknowledged that he was “being retained in the
naval service” but needed to correct
“deficiencies in [his] performance and/or
conduct” involving “incidents of alcohol
abuse.” AR 84, 108. Plaintiff was provided
“recommendations for corrective action . . . effective
immediately, ” warned that further deficiencies in his
performance and/or conduct could result “in
disciplinary action and . . . processing for administrative
separation, ” and told that “all deficiencies
and/or misconduct during [his] current enlistment”
would be considered in any such action. Id.
In May
1988, Plaintiff admitted to his division officer that he
“had drank one beer.” AR 100. Plaintiff also
admitted to being “ticketed for a DUI” but added
that “in court, on base, I proved I was not
intoxicated.” Id. Nevertheless, on June 1,
1988, Plaintiff received NJP for failure to obey a lawful
order issued by the Navy Medical Department to abstain from
drinking alcohol while on the Antabuse Program, in violation
of Article 92 of the UCMJ. AR 93. Plaintiff's rank was
reduced to Petty Officer Second Class, ECF No. 18-2 at 5.
There is no record of him appealing the NJP. AR 93.
On June
2, 1988, Plaintiff's commanding officer issued a
“Notice of a Notification Procedure Proposed Action,
“ informing Plaintiff that he was “being
considered for an administrative separation . . . by reason
of Alcohol Abuse Rehabilitation Failure as evidenced by
Commanding Officer's non-judicial punishment” on
June 1, 1988. Ex. 4 to Am. Compl., ECF No. 18-2 at 6-7; AR
93. Plaintiff was told that if approved by the Commander,
“the least favorable description” of his service
would be “General.” ECF No. 18-2 at 6. The notice
listed the rights and privileges to which Plaintiff was
entitled. By his signature on June 3, 1988, Plaintiff
acknowledged receiving the notice and “understand[ing]
its contents.” ECF No. 18-2 at 7. In a separate
document captioned “Statement of Awareness and Request
for, or Waiver of Privileges, ” signed (and witnessed)
also on June 3, 1988, Plaintiff waived his rights to consult
with an attorney, to appear before a discharge review board,
and to object to the separation. Ex. 5 to Am. Compl., ECF No.
18-2 at 8-9; AR 10, 93. He was formally discharged from the
Navy on June 10, 1988, under honorable conditions (General).
AR 10, 93.
In
March 1997, Plaintiff applied to the Naval Discharge Review
Board (“NDRB”) for review of his discharge and
requested that it be changed to Honorable. AR 91. Plaintiff
asserted, among things, that “[t]here was no evidence
to show [that] he disobeyed a direct order . . . no proof
whatsoever that [he] violated any rules or regulations[, ]
[and] [n]o medical reports reflect[ing] any type of
profession testing for alcohol consumption.”
Id. In addition, Plaintiff pointed to the lack of
“findings of guilt for P.I. or D.W.I., ” claiming
“[q]uite the contrary, we find a verdict of not guilty,
absolving Bogus of any violation.” AR 91-92. The NDRB
found Plaintiff's assertion of an unlawful order
“to have no basis in fact.” AR 95. It cited the
“retention warning” Plaintiff had signed and
found that it “explicitly detailed what actions were
expected, ” including “not drinking, taking
Antibuse [sic], and attending AA meetings.” Therefore,
the NDRB concluded, “[w]hen the applicant subsequently
drank alcohol, his very action constituted both a failure to
rehabilitate and failure to obey a lawful order.”
Id. On May 28, 1997, after having “carefully
examined all available official records in connection
with” Plaintiff's application, the NDRB issued a
“Notice of Decision that Discharge is Proper as
Issued” and determined that “no change is
warranted.” AR 90. It enclosed the Record of Review, AR
91-97.
B.
Request for Corrective Action
1.
Initial Request
On
August 24, 2015, Plaintiff submitted a request to the BCNR
for correction of his Naval Records and supplemented the
request “with additional evidence” in June 2016.
Pl.'s Summ. J. Mot. at 2. Plaintiff specifically
requested an upgraded discharge, from General to Honorable,
and removal of his 1988 NJP and reduction in rank. AR 81. A
three-member panel of the BCNR fully denied Plaintiff's
request on October 20, 2016, after considering his
application, “all material submitted in support
thereof, ” his naval record that included “the
retention warning regarding incidents of alcohol abuse,
” and Plaintiff's “hand written additional
information letter dated 23 June 2016, regarding due
process.” AR 15. The BCNR “carefully weighed all
potentially mitigating factors, such as [Plaintiff's]
record of service, desire to have [the] NJP . . . overturned,
be reinstated to paygrade E-6, desire to upgrade [the]
discharge and contention that [he was] never given notice
that [he] had the right to request legal counsel.” AR
16. But it concluded that those factors “were not
sufficient to warrant overturning” the NJP or granting
any other requested relief. The BCNR cited Plaintiff's
“misconduct which resulted in two NJP's, ”
the warnings he received “of the consequences of
further misconduct, ” and his “failure to adhere
to [his] command's alcohol rehabilitation program.”
Id. The BCNR further noted that upon receiving
notice of the “administrative discharge action, ”
Plaintiff waived his “right to consult with counsel and
to present” his “case to an administrative
discharge board (ADB), ” which, according to the Board,
was Plaintiff's “best chance for retention or a
better characterization of service.” Id.
2.
Request for ...