Kalista v. Secretary of Navy, Civ. A. No. 82-K-1135.

CourtUnited States District Courts. 10th Circuit. United States District Court of Colorado
Writing for the CourtRobert N. Miller, U.S. Atty., and John Barksdale, Asst. U.S. Atty., Denver, Colo., for defendants
Citation560 F. Supp. 608
PartiesJohn P. KALISTA, Plaintiff, v. The SECRETARY OF the NAVY, the Board for Correction of Naval Records and the Naval Discharge Review Board, Defendants.
Docket NumberCiv. A. No. 82-K-1135.
Decision Date29 March 1983

560 F. Supp. 608

John P. KALISTA, Plaintiff,
v.
The SECRETARY OF the NAVY, the Board for Correction of Naval Records and the Naval Discharge Review Board, Defendants.

Civ. A. No. 82-K-1135.

United States District Court, D. Colorado.

March 29, 1983.


560 F. Supp. 609
COPYRIGHT MATERIAL OMITTED
560 F. Supp. 610
Richard M. Borchers, Westminster, Colo., for plaintiff

Robert N. Miller, U.S. Atty., and John Barksdale, Asst. U.S. Atty., Denver, Colo., for defendants.

MEMORANDUM OPINION AND ORDER

KANE, District Judge.

When charged and convicted by civilian authorities on several felony counts, plaintiff was given an undesirable discharge from the United States Marine Corps. In this action plaintiff seeks to have that discharge upgraded under this court's equitable and mandamus powers. Plaintiff is not seeking reinstatement into the Marine Corps. Subject matter jurisdiction rests in Title 28 U.S.C. § 1331 and 1361.

At the time of arrest by civilian authorities in the State of North Carolina, plaintiff was a Lance Corporal in the United States Marine Corps, pay grade E-3, stationed as an aviation ordnance man at the U.S. Marine Corps Air Station, Cherry Point, North Carolina. At the time of trial, plaintiff had served 2 years, 7 months and 17 days in the Corps with an unblemished record. Plaintiff was charged and pled guilty to five counts of breaking and entering a motor vehicle with intent to commit larceny and one count of breaking and entering a dwelling with intent to commit larceny. These charges arose out of off-duty, non-service connected actions of plaintiff. He was sentenced, as a youth offender, to serve not more than four years by a North Carolina state court. Upon sentencing, plaintiff's commanding officer began discharge proceedings which culminated in the undesirable discharge.1

Plaintiff was advised of the discharge proceedings by his commanding officer in a letter of March 19, 1977. Plaintiff responded on March 25, 1977 that he did not understand what was going on and desired a hearing. A Marine legal officer was appointed to represent him at the discharge proceedings which commenced April 22, 1977. The administrative proceedings were held August 5, 1977 before a three-member administrative board. Plaintiff's attorney was present, but due to his civilian confinement, plaintiff was not at the hearing. No transcript of the hearing was made, but there is a written record. Plaintiff objects to this record charging that it is so scant as to be unclear about who was called to testify against plaintiff, what evidence was presented in his favor, what, if anything, his appointed counsel did on his behalf, and what factors were considered by the board in granting the undesirable discharge. Plaintiff protests that despite the fact that he was only approximately 110 miles from Cherry Point in the state correctional facility, and his representations that he had the permission of the confining authorities to leave for the purposes of attending the hearing, no attempt was made either to secure his presence at the hearing or even to obtain an affidavit of his side of the story or any statements in mitigation.

560 F. Supp. 611

Upon his release from confinement,2 plaintiff petitioned the Naval Discharge Review Board to upgrade his discharge to an honorable discharge. This relief was denied June 29, 1981. Plaintiff then petitioned the Board for Corrections of Naval Records for an upgrade. This petition was also denied on November 20, 1981. Plaintiff has exhausted all his administrative remedies.3

Plaintiff bases his motion for summary judgment under Rule 56, F.R.Civ.P. on (1) defendants' failure to justify the granting of the undesirable discharge; (2) denial of effective assistance of counsel; and (3) denial of a fair hearing because no attempt was made to obtain his presence for the hearing all in violation of his constitutional rights. The government has filed a cross-motion for summary judgment arguing that plaintiff has received all the process and rights due him, that this attack against the discharge board is misdirected, and that the decision of the Board for Corrections of Naval Records must be upheld because the board did not act arbitrarily and capriciously. Both parties agree that there are no genuine issues of material fact in dispute.

The Board for Corrections of Naval Records was statutorily created by Title 10 U.S.C. § 1552. See, 32 C.F.R. 723.2. The Naval Discharge Review Board is also a creature of statute, Title 10 U.S.C. § 1553.4 The legislation was enacted to avoid a large number of private bills in congress for formerly discharged servicemen seeking to have the nature and character of their discharge corrected or upgraded. See, Sims v. Fox, 492 F.2d 1088 (5th Cir.1974); Ogden v. Zuckert, 298 F.2d 312, 111 U.S.App.D.C. 398 (1961); 40 Op.Atty.Gen. 504 (1947); 41 Op. Atty.Gen. March 20 (1952). The legislation was remedial in nature and should be liberally construed. Oleson v. U.S., 172 Ct.Cl. 9 (1965). The purpose of the boards is to review the type and nature of discharge in order to correct errors or remove injustices. Subject to review by the Secretary of the Navy, the review board may "change a discharge or dismissal, or issue a new discharge, to reflect its findings." 10 U.S.C. § 1553(b). The regulations provide that the jurisdiction of the review board includes all separations from the naval service, except discharge or dismissal resulting from a general court-martial, revocation of discharge or dismissal, reinstatement into the service or recall of a former member to active status. 32 C.F.R. 724.303. There is no challenge that plaintiff here has requested review within the fifteen (15) year statutory period after the date of discharge or dismissal. 10 U.S.C. § 1553.

SCOPE OF REVIEW

Plaintiff asks this court to upgrade his discharge based on denial of certain constitutional rights at the administrative proceeding held August 5, 1977. The government maintains that plaintiff's request to review those proceedings is misdirected and this court is limited to review of the administrative record only. Defendants further contend that because the correction board's findings are final and conclusive, this court may overturn, set them aside or change them only if the actions of the board were arbitrary or capricious.

It is well established that military decisions and actions are reviewable by the judiciary to determine whether the secretary has acted within the sphere of his statutory and constitutional authority. Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958); Bland v. Connally, 110 U.S.App.D.C. 375, 293 F.2d 852 (D.C. Cir.1961). Judge Hastie5 in Ashe v. McNamara, 355 F.2d 277, 280-81 (5th Cir.1965) did an exhaustive analysis of the legislative history behind section 207 of the Legislative Reorganization Act of 1946, 60 Stat. 837, 10 U.S.C. § 1552 before concluding that the "final and conclusive" language of the statute

560 F. Supp. 612
"was not intended to preclude any otherwise proper judicial review of departmental action upon a petition to change the type of discharge." Id.

Generally, there is a tradition of judicial reluctance to interfere with the military establishment.

But in judgments requiring military expertise and involving military discretion within unique professional fields this long-established view found apt expression in Orloff v. Willoughby, 345 U.S. 83, 94-95, 73 S.Ct. 534, 540, 97 L.Ed. 842 (1953) where the Supreme Court, after noting that "judges are not given the task of running the Army," stated that "the responsibility for setting up channels through which such grievances can be considered and fairly settled rests upon the Congress and upon the President of the United States and his subordinates." And further "The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to interfere in judicial matters."

Horn v. Schlesinger, 514 F.2d 549, 551 (8th Cir.1975). The actions and procedures of the correction board, however, are subject to judicial reversal if they are arbitrary, capricious, unsupported by substantial evidence or erroneous in law. Smith v. McNamara, 395 F.2d 896 (10th Cir.1968), cert. denied, 394 U.S. 934, 89 S.Ct. 1211, 22 L.Ed.2d 466 reh. denied, 394 U.S. 995, 89 S.Ct. 1477, 22 L.Ed.2d 773; Sanford v. U.S., 399 F.2d 693, 694 (9th Cir.1968); Hoorwitz v. Resor, 329 F.Supp. 1050, 1051 (D.Conn. 1970), aff'd per curiam, 445 F.2d 1407 (2nd Cir.1971); Esgate v. U.S., 186 Ct.Cl. 207 (1968), cert. denied, 395 U.S. 913, 89 S.Ct. 1759, 23 L.Ed.2d 226 (1969); Denton v. Seamans, 315 F.Supp. 279 (N.D.Cal.1970), aff'd 483 F.2d 21 (9th Cir.1973) cert. denied, 414 U.S. 1146, 94 S.Ct. 900, 39 L.Ed.2d 102 (1974). Defendants have correctly identified the arbitrary and capricious test as that standard properly applicable in review of the administrative proceedings, however, their argument that my review is limited only to the record of the corrections board is rejected.

ADEQUACY OF THE RECORD

Plaintiff's motion for summary judgment is based in part on his allegation that defendants failed to justify the granting of the undesirable discharge. No transcript was made of plaintiff's discharge hearing on August 5, 1977, however, a written record was made and the administrative record has been provided. I have reviewed the record.

Naval regulations require a hearing where a member is recommended for discharge under other than honorable conditions. Manual § 6025. The requirements of the Administrative Procedure Act, 5 U.S.C. § 551, et seq. apply to these proceedings. Roelofs v. Secretary of Air Force, 628 F.2d 594 (D.C.Cir.1980). Under the APA, the agency must give written notice of the hearing and must detail its findings and the underlying reasons in...

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  • Strang v. Marsh, Civ. A. No. 83-0409 P.
    • United States
    • U.S. District Court — District of Rhode Island
    • February 21, 1985
    ...to correct an error or remove an injustice." 10 U.S.C. § 1552(a). A BCMR need not grant a hearing, however, Kalista v. Sec. of the Navy, 560 F.Supp. 608, 616 (D.Col.1983), and while in limited circumstances it will review a case not yet heard by a DRB, it typically hears cases where a DRB h......
  • Vietnam Veterans of America v. Secretary of the Navy, Nos. 86-5547
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 29, 1988
    ...1570 (D.R.I.1985). Unlike the NDRB, it is not required to grant a hearing, see id. at 1570 (citing Kalista v. Secretary of the Navy, 560 F.Supp. 608, 616 (D.Colo.1983)). And "while in limited circumstances it will review a case not yet heard by a DRB, it typically hears cases where a DRB ha......
  • Fogel v. Department of Defense, No. CV 01-3269 ADSMLO.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • October 29, 2001
    ...523 F.2d 1031 (6th Cir.1975); Moreno v. Commander, McChord Air Force Base, 567 F.Supp. 1437 (D.Ariz.1983); Kalista v. Sec'y of Navy, 560 F.Supp. 608 (D.Colo. 1983); Tufts v. Bishop, 551 F.Supp. 1048 (D.Kan.1982); Jamison v. Stetson, 471 F.Supp. 48 Thus, Fogel's supplemental arguments have n......
  • Burkins v. US, Civ. A. No. 93-K-2125.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • October 4, 1994
    ...determine whether the secretary has acted within the sphere of his statutory and constitutional authority. Kalista v. Secretary of Navy, 560 F.Supp. 608, 611 (D.Colo.1983) (finding jurisdiction under 28 U.S.C. §§ 1331 and 1361 in action to compel Board for Corrections of Naval Records to up......
  • Request a trial to view additional results
10 cases
  • Strang v. Marsh, Civ. A. No. 83-0409 P.
    • United States
    • U.S. District Court — District of Rhode Island
    • February 21, 1985
    ...to correct an error or remove an injustice." 10 U.S.C. § 1552(a). A BCMR need not grant a hearing, however, Kalista v. Sec. of the Navy, 560 F.Supp. 608, 616 (D.Col.1983), and while in limited circumstances it will review a case not yet heard by a DRB, it typically hears cases where a DRB h......
  • Vietnam Veterans of America v. Secretary of the Navy, Nos. 86-5547
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 29, 1988
    ...1570 (D.R.I.1985). Unlike the NDRB, it is not required to grant a hearing, see id. at 1570 (citing Kalista v. Secretary of the Navy, 560 F.Supp. 608, 616 (D.Colo.1983)). And "while in limited circumstances it will review a case not yet heard by a DRB, it typically hears cases where a DRB ha......
  • Fogel v. Department of Defense, No. CV 01-3269 ADSMLO.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • October 29, 2001
    ...523 F.2d 1031 (6th Cir.1975); Moreno v. Commander, McChord Air Force Base, 567 F.Supp. 1437 (D.Ariz.1983); Kalista v. Sec'y of Navy, 560 F.Supp. 608 (D.Colo. 1983); Tufts v. Bishop, 551 F.Supp. 1048 (D.Kan.1982); Jamison v. Stetson, 471 F.Supp. 48 Thus, Fogel's supplemental arguments have n......
  • Burkins v. US, Civ. A. No. 93-K-2125.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • October 4, 1994
    ...determine whether the secretary has acted within the sphere of his statutory and constitutional authority. Kalista v. Secretary of Navy, 560 F.Supp. 608, 611 (D.Colo.1983) (finding jurisdiction under 28 U.S.C. §§ 1331 and 1361 in action to compel Board for Corrections of Naval Records to up......
  • Request a trial to view additional results

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