Lord v. Lehman, Civ. A. No. 81-2781.

• Decision Date: 09 June 1982
• Docket Number: Civ. A. No. 81-2781.
• Citation: 540 F. Supp. 125
• Parties: Charles LORD v. Joseph LEHMAN, Secretary of the Navy, Department of the Navy and W. Dean Pfeiffer, Executive Director, Department of the Navy, Board for Correction of Naval Records.
• Court: U.S. District Court — Eastern District of Pennsylvania

540 F. Supp. 125

Charles LORD v. Joseph LEHMAN, Secretary of the Navy, Department of the Navy and W. Dean Pfeiffer, Executive Director, Department of the Navy, Board for Correction of Naval Records.

Civ. A. No. 81-2781.

United States District Court, E. D. Pennsylvania.

June 9, 1982.

Mark A. Kaufman, Delaware County Legal Assistance Ass'n, Darby, Pa., for plaintiff.

Thomas J. McBride, Asst. U. S. Atty., Philadelphia, Pa., for defendants.

OPINION

LUONGO, Chief Judge.

Plaintiff, Charles Lord, brought this action pursuant to § 702 of the Administrative Procedure Act, 5 U.S.C. § 702, seeking judicial review of his undesirable discharge from the United States Marine Corps. Named as defendants are Joseph Lehman, Secretary of the Navy, and W. Dean Pfeiffer, Executive Director of the Board for Correction of Naval Records (BCNR). Jurisdiction over this action is pursuant to 28 U.S.C. § 1331. Neal v. Secretary of Navy, 639 F.2d 1029, 1036 (3d Cir. 1981). Presently before me are cross-motions for summary judgment.

The material facts in this action are undisputed and are as follows. On October 23, 1974, Lord, a Marine Corps private, was convicted of arson by North Carolina civilian authorities for setting fire to an empty trailer-home and was sentenced to five to seven years in the North Carolina State Prison. This conviction led Lord's commanding officer, Lieutenant Colonel J. A. O'Brien, to recommend that Lord be given an undesirable discharge¹ on the ground of misconduct. (Exhibit B to Complaint at 67) Under the applicable regulation a "conviction by civil authorities ... which was tantamount to a finding of guilty of an offense for which the maximum penalty under the Uniform Code of Military Justice was ... confinement in excess of one year" provided a basis for an undesirable discharge. 32 C.F.R. § 41.7(j)(1); Marine Corps Separation and Retirement Manual ¶ 6018.2(c) (Exhibit D to Complaint) reprinted at 32 C.F.R. § 730.67(d)(3) (1975).² There is no dispute that Lord's arson conviction was such a conviction.

On July 11, 1975 an Administrative Discharge Board (ADB) was convened at Lord's request pursuant to 32 C.F.R. § 41.7(i) & § 730.54(b)(1) (1975). Lord did not attend the hearing (apparently due to his incarceration) but he was represented by counsel. (Complaint ¶ 13; see also Exhibit B to Complaint at 33) The ADB, which consisted of three military voting members, unanimously recommended to the Commanding General "that Pvt. Lord be separated from the Marine Corps with an Undesirable Discharge under conditions other than honorable due to misconduct on the specific basis of a civil conviction." (Exhibit B to Complaint at 10) This was the only finding made by the ADB. The Commanding General concurred with this recommendation (Exhibit C to Complaint at 24) and Lord was given an undesirable discharge on August 12, 1975. (Id. at 28)

On June 21, 1979, Lord applied to the Naval Discharge Review Board (NDRB) to have his discharge upgraded to honorable. (Exhibit A to Complaint at 21) Briefly, pursuant to 10 U.S.C. § 1553, the NDRB is empowered to change a discharge or issue a new discharge to former members of the Navy or Marines. Id. § 1553(b). The NDRB conducted a hearing on Lord's application on January 18, 1980. Lord, who was represented by his present counsel, appeared and testified at this hearing. After considering the testimony, Lord's service record, and a "list of contentions of law, fact and discretion to be answered in the board's determination of law, fact and discretion" submitted by Lord's counsel, the NDRB, finding that none of Lord's contentions were valid, denied Lord's application for an upgrade of his discharge. (Exhibit A to Complaint at 33) The NDRB concluded that

the type of the applicant's discharge should not be changed because the nature of the offense which resulted in the applicant's civil conviction possesses a degree of aggravation and constitutes moral turpitude which warrants characterization of the applicant's separation as under other than honorable conditions.

Id. at 34

On June 16, 1980, Lord applied to the Board for Correction of Naval Records (BCNR) to correct his discharge from undesirable to honorable. The BCNR is a civilian board which is empowered to recommend to the Secretary of the Navy the correction of "any military record of that department when ... necessary to correct error or remove an injustice." 10 U.S.C. § 1552(a). Neal v. Secretary of Navy, supra, 639 F.2d at 1033 n.4. On June 10, 1981 defendant, Pfeiffer, on behalf of the BCNR, informed Lord in the following letter that his application was denied.

Dear Mr. Lord:

The Board for Correction of Naval Records considered your application for corrective action in Executive Session on 2 June 1981. This review was conducted in accordance with current procedures applicable to this Board. Documentary material considered by the Board included your application, along with all material submitted in support thereof, your naval records, and pertinent statutes, regulations, and policies. Also considered was an Examiner's Case Summary, a copy of which is enclosed.

After due deliberation the Board determined that the undesirable discharge by reason of misconduct due to civil conviction which you received on 12 August 1975 was appropriate and equitable under laws and regulations in effect at that time. The Board found that you enlisted in the U.S. Marine Corps on 28 December 1973 at age 17.

Prior to the civil offense which led to your administrative discharge, you were awarded nonjudicial punishment on one occasion. Your offenses were failure to be at appointed place of duty and disobedience of orders.

You were convicted of arson, and sentenced to five to seven years imprisonment. An undesirable discharge is authorized whenever the sentence is for longer than one year.

In its review of your application the Board carefully weighed all potentially mitigating factors, such as your allegation of recruiter connivance, service record, youth and immaturity, and processing of the discharge, against the serious nature of your civil offense. It concluded that these factors were not sufficient to warrant recharacterization of your undesirable discharge.

In view of the foregoing, the Board has concluded that the facts and circumstances of your case fail to show that a material error has occurred or an injustice has been suffered. Accordingly, your application must be denied. The names and votes of the Board members will be furnished upon request.

(Exhibit B at 40).

On July 17, 1981 Lord filed the instant action contending that his undesirable discharge was arbitrary and capricious and in violation of the applicable regulations and constitutional provisions. He seeks a declaration that his undesirable discharge was unlawful and requests that this court reinstate him to the Marines until discharge proceedings can be conducted in conformance with law. In addition, Lord seeks an award of back pay and privileges subject to the $10,000 limit on this court's jurisdiction. See 28 U.S.C. § 1346. Alternatively, Lord requests that I direct the Secretary of the Navy to upgrade Lord's discharge to one issued under honorable conditions.

In moving for summary judgment Lord contends that the regulatory scheme in effect at the time of his discharge contemplated that the decision as to whether to discharge a person for a civilian conviction was within the Marine Corps' discretion and was to be exercised on the basis of the individual's characteristics. Similarly, Lord contends that the Marine Corps also had discretion as to the type of discharge to be issued in the event a decision to discharge was made. Lord argues that the various decisional boards that considered his discharge did not sufficiently articulate the reasons underlying their conclusion that an undesirable discharge was warranted and that, therefore, the record before this court is insufficient to allow for proper judicial review.³

Defendants answer these contentions by moving for summary judgment on the basis that "the fact of a conviction for arson is in and of itself sufficiently particularized to support" the decision to issue Lord an undesirable discharge. They further argue that the administrative decision that this court must review is the BCNR decision set forth in full supra. It argues that the BCNR review of Lord's case cured any asserted deficiencies in prior proceedings.

Lord appropriately does not dispute defendants' contention that this court is actually reviewing the BCNR decision. Greenblatt v. Schlesinger, slip op. No. B-74-1204 (D.Md.1976). See, e.g., Manzo v. Lehman, slip op. No. 81-1616 at 6 (E.D.Pa., April 30, 1982). The BCNR was established pursuant to the authority provided in 10 U.S.C. § 1552 and it is expressly empowered to determine the existence of an error or injustice and to make appropriate recommendations to the Secretary of the Navy. 10 U.S.C. § 1552(a); 32 C.F.R. § 723.2(b) (1981). Although its title implies that its function is limited to making clerical changes in service records, the BCNR is authorized to grant whatever relief is necessary to make whole a wrongfully discharged serviceman. 10 U.S.C. § 1552(c); 32 C.F.R. § 723.6(e). Terrell v. United States Army, slip op. No. 81-1418 at 3 (E.D. Pa., Jan. 22, 1982). In essence the BCNR is the Navy's "institutional check on arbitrary action" by administrative decisionmakers in that branch of the service, Neal v. Secretary of Navy, supra, 639 F.2d at 1042, and deficiencies in earlier administrative proceedings can be cured by proper BCNR review. See, e.g., Peppers v. United States Army, 479 F.2d 79, 83 (4th Cir. 1973). See, also, Neal v. Secretary of Navy, supra, 639 F.2d at 1045 n.16; Two v. United States, 471 F.2d 287 (9th Cir. 1972), cert. denied, 412 U.S. 931, 93 S.Ct. 2750, 37 L.Ed.2d 160 (1973). In light of the broad remedial powers of the BCNR, "once a plaintiff has sought relief from the ...