Blassingame v. Secretary of Navy
| Decision Date | 26 January 1987 |
| Docket Number | D,No. 369,369 |
| Citation | 811 F.2d 65 |
| Parties | Larry BLASSINGAME, Plaintiff-Appellant, v. SECRETARY OF the NAVY, Naval Discharge Review Board and Board for the Correction of Naval Records, Defendants-Appellees. Vietnam Veterans of America, Amicus Curiae. ocket 86-6037. |
| Court | U.S. Court of Appeals — Second Circuit |
Stephen P. Younger, New York City (Patterson, Belknap, Webb & Tyler, Michael B. Mukasey, Harman A. Grossman, of counsel), for plaintiff-appellant.
David M. Nocenti, Brooklyn, N.Y., Asst. U.S. Atty., E.D.N.Y. (Andrew J. Maloney, U.S. Atty., E.D.N.Y., Robert L. Begleiter, Asst. U.S. Atty., Commander Richard Philpott, Captain Michael McClosky, Office of the Judge Advocate General, Dept. of the Navy, of Counsel), for defendants-appellees.
Barton F. Stichman, Julia A. Trotter, Washington, D.C., Vietnam Veterans of America Legal Services, for Larry E. Blassingame, as amicus curiae.
Before FEINBERG, Chief Judge, NEWMAN and MINER, Circuit Judges.
This case raises a number of questions growing out of attempts by a former member of the United States Marine Corps, Larry E. Blassingame, to upgrade his discharge status from undesirable to honorable. Plaintiff Blassingame appeals from an order of the United States District Court for the Eastern District of New York, Thomas C. Platt, J., which dismissed Blassingame's complaint and granted summary judgment to defendants, the Secretary of the Navy, the Naval Discharge Review Board and the Board for Correction of Naval Records. Blassingame had petitioned the two Boards to upgrade his discharge and was denied relief. For reasons set forth below, we reverse and remand for further proceedings.
A. Roles of the Boards. Because the roles and the interrelationship of the Naval Discharge Review Board (the Review Board) and the Board for Correction of Naval Records (the Correction Board) are not well-known and are significant in this case, we describe briefly their respective functions. As provided by 10 U.S.C. Sec. 1553(a) and accompanying regulations, 32 C.F.R. Secs. 724.101-724.903, a veteran can obtain review of his discharge status from the Marines by petitioning the Review Board, which was established by the Secretary of the Navy after consultation with the Administrator of Veterans' Affairs. 1 A veteran is permitted 15 years from the date of his discharge to file a petition with the Review Board. Within that 15-year period a veteran is entitled to re-petition the Review Board for further consideration, but not on the basis of the same evidence. 32 C.F.R. Sec. 724.217.
As provided by 10 U.S.C. Sec. 1552(a), (b) and accompanying regulations, 32 C.F.R. Secs. 723.1-723.11, a veteran can also obtain review of his discharge status by petitioning the Correction Board, which was established by the Secretary of the Navy with approval of the Secretary of Defense. 2 The Correction Board is authorized to "correct any military record ... necessary to correct an error or remove an injustice." A veteran must submit a request to the Correction Board within three years of discovering the error or injustice, unless the Correction Board waives the three-year limitation in the "interest of justice." Before petitioning the Correction Board, a veteran must exhaust his administrative remedies. 32 C.F.R. Sec. 723.3(c).
Two implications spring from the combination of the requirement of exhaustion of administrative remedies before Correction Board review and the broad power of the Correction Board to correct any military record so as to remedy an error or injustice. The first is that, in situations where the Review Board can provide the requested relief, such as an upgraded discharge, a veteran first petitions the Review Board before he requests the same relief from the Correction Board. See, e.g., June v. Secretary of the Navy, 557 F.Supp. 144, 146-47 (M.D.Pa.1982). See generally Lunding, Judicial Review of Military Administrative Discharges, 83 Yale L.J. 33, 40-42 (1973). In situations where the Review Board cannot grant the requested relief, a veteran may proceed to the Correction Board without first seeking relief from the Review Board. The Review Board cannot provide certain types of relief, such as revocation of a discharge, see 32 C.F.R. Sec. 724.205, nor can it grant any relief requested after the 15-year period in 10 U.S.C. Sec. 1553(a). The second implication is that, in cases where the Review Board has made a decision and committed an error or injustice, the Correction Board can review the Review Board decision and correct the error or injustice, subject to the three-year period of 10 U.S.C. Sec. 1552(b). See Geyen v. Marsh, 775 F.2d 1303, 1309 (5th Cir.1985), reh'g denied, 782 F.2d 1351 (1986); Van Bourg v. Nitze, 388 F.2d 557, 565 (D.C.Cir.1967).
B. Prior Proceedings. Blassingame enlisted in the United States Marine Corps in July 1969 when he was barely 17 years old. He had only a tenth grade education and his test scores placed him in the lowest mental category the Navy allows to enlist. Blassingame subsequently served in Vietnam. In June 1971, he was given an undesirable discharge due to his frequent confrontations with military authorities. Pursuant to 10 U.S.C. Sec. 1553(a), Blassingame petitioned the Review Board in 1973 and again in 1977 to upgrade his discharge to honorable. His request was denied on both occasions. Pursuant to 10 U.S.C. Sec. 1552(b), Blassingame in 1979 petitioned the Correction Board for an upgrade, which was denied on the merits in April 1981.
In November 1981, Blassingame again petitioned the Review Board. The petition was denied initially in February 1983 and then again in December 1983 after the Review Board reconsidered the matter at Blassingame's request. In February 1984 Blassingame petitioned the Correction Board, which referred the matter to the Judge Advocate General, who furnished an advisory legal opinion. After receiving Blassingame's comments on the advisory opinion, the Correction Board denied relief in June 1984.
In October 1984, Blassingame brought this suit in federal district court. His original pro se complaint named only the Secretary of the Navy as defendant and sought monetary damages. Blassingame made a claim of erroneous enlistment, alleging that he was under age when he enlisted, and a claim of wrongful discharge contesting his culpability for confrontations with military authorities and alleging racial discrimination.
After the district court appointed pro bono counsel, Blassingame filed an amended complaint in April 1985 substituting a new claim for his earlier claims. This complaint named the Secretary of the Navy, the Review Board and the Correction Board as defendants. For convenience, we shall refer to them collectively as the government. In the amended complaint, Blassingame relinquished his demand for monetary damages. He sought only judicial review of the decisions of the Review Board in 1983 and the Correction Board in 1984, alleging that "defendants acted arbitrarily and capriciously and made determinations unsupported by the evidence and contrary to law, to precedent and to defendants' internal procedures" and requesting only the equitable relief of an upgrade of his discharge from undesirable to honorable.
The government moved to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted; alternatively the government requested a more definite statement of Blassingame's claims. While the case was under advisement in the district court, Blassingame submitted letters to the district court raising additional claims. He reasserted his claim of erroneous enlistment and emphasized that a claim for judicial review of Board decisions was distinct from a claim for judicial review of the underlying discharge. Judge Platt dismissed Blassingame's complaint, holding that the court lacked subject matter jurisdiction over his claim of wrongful discharge and that both the applicable statute of limitations and the doctrine of laches barred his claim for review of the Review Board and Correction Board decisions. As an alternative disposition of the latter claim, Judge Platt held that the Board actions were not arbitrary and capricious and granted summary judgment to the government, even though the government had not so requested. Judge Platt also dismissed Blassingame's claim of erroneous enlistment as lacking in factual and legal merit. See Blassingame v. Secretary of the Navy, 626 F.Supp. 632 (E.D.N.Y.1985). This appeal followed.
In this court, Blassingame is supported by an amicus brief from the Vietnam Veterans of America, a nonprofit national organization whose purpose is to advance the interests and advocate the rights of Vietnam era veterans. On appeal, Blassingame presses only his claim for review of the Review Board and Correction Board decisions, and emphasizes that he seeks only the equitable relief of an upgrade of his discharge and no monetary damages. We find Blassingame's claim against the Correction Board is not barred by the statute of limitations or laches. We also hold that Blassingame did not receive fair notice that Judge Platt would decide that claim by summary judgment. Thus, we reverse the judgment of the district court.
We concern ourselves primarily with Blassingame's claim against the Correction Board, but not the Review Board. Blassingame has already petitioned both the Review Board and the Correction Board. As noted above, the latter Board has the authority to review the action of the former. Under the circumstances, we need review directly only the action of the Correction Board.
A. Jurisdiction of this Court. Amicus argues as a threshold matter that this court has jurisdiction of Blassingame's appeal. Blassingame and the government do not address this issue in their briefs. However, this court must determine that jurisdiction...
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