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Bogus v. Spencer

United States District Court, District of Columbia

September 3, 2019

FRED BOGUS, Plaintiff,
RICHARD V. SPENCER[1] et al., Defendants.



         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 ...

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