STEPHEN M. McNAMEE, Senior District Judge.
Plaintiff Charissa Herka ("Plaintiff") filed her Complaint against Secretary of the Navy, Ray Mabus ("Secretary"), the Board of Correction of Naval Records ("BCNR"), and the Naval Discharge Review Board ("NDRB") (collectively "Defendants"). (Doc. 1.)
The Court will grant Defendants' motion for summary judgment, deny Plaintiff relief, and terminate this case.
Plaintiff enlisted in the U.S. Navy on March 16, 2004, and was later assigned to the guided missile destroyer USS Bainbridge. (Doc. 15-2 at 107.) On or about April 11, 2005, Plaintiff acknowledged receipt of a Notice of her Command's intent to initiate administrative separation processing for "misconduct due to drug abuse" ("Notice"). (
The particular testimony presented at this proceeding will be throughly addressed infra in the Court's Discussion section. The ADB panel unanimously found that the preponderance of the evidence substantiated a finding of Plaintiff's drug abuse, and the ADB panel recommended that Plaintiff be separated with a General Characterization of Service. (
Board's findings and "strongly recommended" that Plaintiff be separated with a characterization of service as General. (
On March 8, 2006, Plaintiff applied to the NDRB to upgrade her discharge to "Honorable." (Doc. 15-2 at 82.) On January 26, 2007, a five-member NDRB panel unanimously determined there was "credible evidence in the record that the Applicant used illegal drugs" (
On August 9, 2007, the BCNR received an application from Plaintiff to change her reentry code. (
On January 23, 2009, Plaintiff filed another application with the NDRB and requested an amendment to her narrative reason for separation, her RE-4 reentry code and characterization of service. (
On or about March 24, 2011, Plaintiff submitted another application for review with the BCNR. (Doc. 15-1 at 62-64.) On April 28, 2011, the BCNR denied Plaintiff's application, which it construed as a request for reconsideration of its February 4, 2008 decision. The BNCR advised that that while "at least some of the evidence you have submitted is new, it is not material" — and Plaintiff therefore had failed to satisfy the BCNR's standard for reconsideration. (
On July 22, 2013, Plaintiff again applied to the BCNR for reconsideration. (
On October 23, 2014, Plaintiff filed her Complaint with this Court requesting that the Court "order the BCNR and/or NDRB to upgrade her discharge, or vacate and remand their decisions." (Doc. 1 at 5.) On April 14, 2015, pursuant to a joint motion, the Court remanded the matter to the BCNR. (Docs. 7-8.) The parties requested a remand to permit the BCNR to review all of the material Plaintiff had submitted with her March 2011 and July 2013 applications, and to "address in detail the issues raised and relief sought" by Plaintiff. (Doc. 7 at 2.) On remand, on July 22, 2015, a three-member BCNR panel, sitting in executive session "carefully considered documentary material consisting of the proceedings of the NDRB; [Plaintiff's] previous applications and reconsideration requests; [Plaintiff's] naval record and applicable statutes, regulation and policies; and supplemental guidance issued by the Secretary of Defense to military correction boards regarding the treatment of discharge upgrade requests by veterans claiming Post-Traumatic Stress Disorder" ("PTSD"). (Doc. 15-1 at 3.)
In its July 22, 2015 decision, the BCNR panel denied relief, finding that "there was insufficient evidence to support [Plaintiff's] allegations and the misconduct she committed while in the service was too serious to warrant an honorable characterization of service." (
It is undisputed that Plaintiff has exhausted all of her administrative remedies and Plaintiff now seeks review of Defendants' final decision that denied her relief. (Doc. 1.) The final agency action that is subject to this Court's judicial review is the BCNR's July 22, 2015 Decision. (Doc. 15-1 at 3-6.)
"A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought." Fed. R. Civ. P. 56(a) A court must grant summary judgment if the pleadings and supporting documents, viewed in the light most favorable to the nonmoving party, show "that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law."
A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims."
In 1946, Congress enacted 10 U.S.C. § 1552 to provide an administrative system to correct military records and review military discharges and dismissals to avoid an increasing burden imposed on Congress occasioned by discharged servicemen seeking to have the nature, character, or type of their discharge certificate corrected.
In pertinent part, 10 U.S.C. § 1552(a)(1) provides: "The Secretary of a military department may correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error or remove an injustice. . . . [S]uch corrections shall be made by the Secretary acting through boards of civilians of the executive part of that military department." For the Navy and Marines, the BCNR is the statutory civilian board.
The applicable federal regulations implementing the administrative system to correct military records and review military discharges are found at 32 C.F.R. § 723 (1997). In part, the applicable regulation provides that current and former members of the Navy and Marine Corps may only apply to the BCNR after first exhausting "all available administrative remedies."
The Ninth Circuit has found that § 1552 decisions of the Secretary are reviewable in accordance with the Administrative Procedures Act ("APA").
"[J]udicial review of a military corrections board decision `does not require a reweighing of the evidence, but rather a simple determination that a reasonable mind could support the challenged conclusion.'"
In this APA action, Plaintiff's Complaint alleges that the final July 22, 2015 decision of the Secretary, acting through the BCNR, was arbitrary, capricious, an abuse of discretion, and was not otherwise in accordance with law, based upon the BCNR's denial of her request to correct her record to reflect an honorable discharge as opposed to a general discharge and allow her to reenlist in the Navy. (Doc. 1.)
In support of their motion for summary judgment, Defendants contend that the final decision of the Secretary is supported by substantial evidence, which decision reviewed all of the Navy's proceedings taken against Plaintiff. (Doc. 15-1 at 3 (stating "[t]he [BCNR] carefully considered documentary material consisting of proceedings of the NDRB; your previous applications and reconsideration requests; and all material submitted in support thereof to include your naval record and applicable statutes, regulations and policies.").)
The final BCNR decision which found substantial evidence for Plaintiff's discharge was mainly based upon the evidence presented at Plaintiff's initial administrative separation hearing held by the ADB. (
IT2 Golden testified that while administering Plaintiff's urinalysis, Plaintiff made statements to Golden about her "smoking weed" and "getting high." (
During the hearing, Plaintiff's counsel cross-examined the Navy's witnesses, including IT2 Golden, and presented her own witnesses and exhibits. (
The ADB unanimously found, which was concurred in by Plaintiff's Commanding Officer, that the evidence substantiated drug abuse and separation from the Navy. (
Based on Naval policies and procedures, the Navy mandates separation processing for Navy personnel for drug abuse because it is "detrimental to good order and discipline, mission readiness and appropriate standards of performance and conduct." (
Upon review of the administrative separation process, the final BCNR decision concluded that Plaintiff's misconduct was "too serious to warrant an honorable characterization of service. Further, the [BCNR] concluded that the administrative separation process was administratively, procedurally, and legally proper as written and filed. . . . The [BCNR] was influenced in its decision by the fact that you enjoyed due process throughout your administrative separation while represented by legal counsel." (Doc. 15-1 at 5.)
In addition to the administrative separation process, the final BCNR decision considered additional mitigation evidence that Plaintiff subsequently presented in her two applications/petitions to the NDRB and her four applications/petitions to the BCNR. (
In response, Plaintiff first contends that even if military decisions are subject to an exceptionally deferential standard of review, she should not have to overcome any deferential standard because her discharge was unjust to begin with, and the Defendants have been aware of this since her initial application to change her discharge. (Doc. 22 at 1.) Therefore, according to Plaintiff, Defendants have been arbitrary and capricious in denying all of her applications/petitions. (
Under the APA, a federal court may set aside an agency decision if the decision is demonstrated to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. "[J]udicial review of a military corrections board decision `does not require a reweighing of the evidence, but rather a simple determination that a reasonable mind could support the challenged conclusion.'"
Here, the Court has little difficulty finding that the final decision of the Secretary of the Navy was rational and based upon substantial evidence. Based on Naval policies and procedures, the Navy mandates separation processing for Navy personnel for drug abuse because it is "detrimental to good order and discipline, mission readiness and appropriate standards of performance and conduct." (Doc. 15-2 at 118.) Separation processing is mandatory when there is an "admission of drug abuse. (
As the Court has already detailed at length in this case, Plaintiff's record included a self-admission of drug abuse to IT2 Golden, an unbiased urinalysis test observer. (Doc. 15-2 at 102, 124.) Further, there is additional substantial evidence that Plaintiff requested Naval Serviceman O'Hara to find for her purchase an eight-ball of cocaine. This substantial evidence was testified to by NCIS Investigator Fogerty at the ADB separation hearing and submitted to the Navy in a sworn statement by Serviceman O'Hara. (
Next, the Court finds that administrative proceedings conducted in this matter were not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. The Court denies that Plaintiff suffered a due process violation. Although counsel for Plaintiff objected that she was not given proper notice of O'Hara's statement or Agent Fogerty's NCIS investigation (
Based upon the Court's finding that substantial evidence supports the decision of the Secretary, the Court will not set aside the decision of the Secretary rendered through the BCNR. The BCNR's decision was not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law
Accordingly,
In fact, the 5-Member panel of the NDRB voted unanimously to deny Plaintiff relief, finding that her discharge was warranted and included self-admitted drug use to IT2 Golden. (Doc. 15-2 at 11.)