Mahoney v. Toro

Decision Date22 May 2023
Docket NumberCivil Action 22-11074-FDS
PartiesDANIEL RICHARD MAHONEY, Plaintiff, v. CARLOS DEL TORO, Secretary of the Navy, Defendant.
CourtU.S. District Court — District of Massachusetts



This is a case concerning a denial of a veteran's petition for a recharacterization of his discharge. Plaintiff Daniel Mahoney asserts that the Board for Correction of Naval Records (“BCNR”) improperly denied his petition to upgrade his discharge characterization from “other than honorable” to “honorable” or (alternatively) “general under honorable conditions.” He contends that the BCNR's decision should be reversed under the Administrative Procedure Act, 5 U.S.C. § 500 et seq. Defendant Carlos Del Toro the Secretary of the Navy, contends that the BCNR's decision should be upheld.

Mahoney received a general discharge from the Navy in 1989 under “other than honorable conditions” for “misconduct due to drug abuse and [a] pattern of misconduct.” Among other things, a urinalysis test detected marijuana in his system; he contended that he tested positive because another sailor “tossed” a joint into his alcoholic beverage, and that therefore his consumption of marijuana was not knowing.

Mahoney now contends that he was suffering at the time from post-traumatic stress disorder (“PTSD”), and that under current military policies, the BCNR should have granted his petition to upgrade the characterization of his discharge. The BCNR denied his petition, in substance because he has not admitted that his marijuana use was knowing, and therefore wrongful; that his version of events is not credible; and that neither Mahoney himself nor any expert has attributed his marijuana use to PTSD.

This action, in substance, is an appeal from that decision. Mahoney has moved for judgment on the pleadings and for summary judgment. Del Toro has cross-moved for judgment on the pleadings.

Without question, the United States military is entitled to take substance abuse seriously. And it is likewise entitled to give substantial weight to issues such as candor credibility, and acceptance of responsibility in its personnel decisions, including the determination of whether a characterization of a service discharge should be upgraded. Indeed, the guidance provided by the Department of Defense to the BCNR specifically provides that the Board may consider [a]n applicant's candor” and his [a]cceptance of responsibility, remorse, or atonement for misconduct” in deciding whether to grant relief. See Memorandum from Robert Wilkie, Under Sec'y of Def. for Personnel and Readiness (July 25, 2018).

Furthermore it is not the role of this Court to simply second-guess the decisions of military boards of review. Its role is a limited one, confined to determining whether such a decision was arbitrary, capricious, an abuse of discretion, or otherwise contrary to law.

Under the circumstances presented here, the Court cannot make the necessary findings to overturn the decision of the BCNR. Accordingly, and for the following reasons, plaintiff's motions for judgment on the pleadings and for summary judgment will be denied, and defendant's motion for judgment on the pleadings will be granted.

I. Background
A. Factual Background

The following facts, unless noted otherwise, are set forth as alleged in the complaint. The Court also takes notice of the administrative record before the BCNR, as a document whose authenticity is not in dispute. See Curran v. Cousins, 509 F.3d 36, 44 (1st Cir. 2007).

Daniel Mahoney is a resident of Massachusetts. He served two tours of duty in the Navy between 1985 and 1989. (Admin. Rec. at 0076, 0084-85).

Carlos Del Toro is the Secretary of the Navy. (Compl. ¶ 4).

Mahoney first enlisted in the Navy on August 27, 1985. (Admin. Rec. at 0109). During his first enlistment, between February and August 1986, he was deployed on the USS Luce. (Id. at 0077). The USS Luce “escorted oil tankers throughout the Persian Gulf, and through the Suez Canal to the Mediterranean Sea” during the Iran-Iraq War. (Id.). “During this period, many commercial ships operating in the Gulf were hit by Iranian and Iraqi attacks.” (Id.).

While serving on the USS Luce, Mahoney “witnessed a number of traumatic events.” (Id.). He “observed an explosion on an oil tanker” and “witnessed crew members engulfed in flames jumping into sea while others were being burned to death.” (Id.). He “smelled burning flesh.” (Id.). He “felt intense fear, horror, and helplessness,” and “wanted to do something to help those sailors, but [ ] could not.” (Id. at 0077-78).

Mahoney rose in paygrade and rank. (Id. at 0078, 0163). He did not receive any nonjudicial punishments (“NJPs”). (Compl. ¶ 15). He was awarded a commendation for his work on the USS Luce's pump in “hostile waters off the coast of Libya,” and another for “outstanding performance” of “demanding duties with great dedication.” (Id. ¶ 16; Admin. Rec. at 0169). He received three service ribbons. (Compl. ¶ 17; Admin. Rec. at 0088).

On August 24, 1988, Mahoney's first deployment ended, and he was honorably discharged. (Admin. Rec. at 0007). He reenlisted the next day. (Id.).

Mahoney's second deployment was difficult. According to the complaint, he “had extreme difficulty sleeping and felt like [he] was always under constant stress.” (Id. at 0079). He “had overwhelming feelings of horror, anger, and guilt daily, and continued to relive [his] experience in the Persian Gulf.” (Id.). He “discovered that alcohol helped stop some of these troubling thoughts and also helped [him] fall asleep.” (Id.).

In December 1988, Mahoney received an NJP for “an unauthorized absence of 30 minutes.” (Id. at 0080).

In January 1989, Mahoney was apprehended in Jacksonville, Florida, for a “DWI, speeding, and having the wrong tag on [his] vehicle.” (Id.).

In February 1989, Mahoney received an NJP for drunkenness. (Id.).

In March 1989, Mahoney was evaluated for “drug/alcohol dependency.” (Id.).

From about April 23, 1989, to June 2, 1989, Mahoney was treated at the Naval Hospital in Pensacola, Florida. (Id. at 0081). His treatment “emphasized abstinence” from alcohol. (Id.). He was not treated for his “stress disorder or the stress symptoms” that he was experiencing. (Id.).

In July 1989, Mahoney received an NJP for an unauthorized absence of “one hour and 53 minutes.” (Id. ¶ 26).

In September 1989, Mahoney received a single NJP for (1) an unauthorized absence lasting 11 hours and 30 minutes; (2) an unauthorized absence lasting 30 minutes; and (3) a single positive urinalysis for marijuana.” (Compl. ¶ 29; Admin. Rec. at 0275). Mahoney asserts that he tested positive because another sailor “tossed” a joint into “the alcoholic beverage [he] was drinking” the day before the urinalysis. (Admin. Rec. at 0082).

In late September, Mahoney's commander informed him that he was being considered for separation. (Id. at 0083).

On October 16, 1989, Mahoney declined further “drug/alcohol care.” (Id.). He was then administratively separated and discharged under other than honorable conditions. (Id. at 0275).

Mahoney's discharge paperwork notes that the basis for his discharge was “misconduct due to drug abuse and pattern of misconduct.” (Id. at 0275). It listed four NJPs. (Id. at 0275).

According to the complaint, immediately after his discharge, Mahoney was homeless for six months before moving back to Massachusetts. (Id. at 0083-84). Until 2006, he struggled to find “steady employment” and “struggle[d] with controlling [his] alcohol dependency.” (Id. at 0084). He found himself “hitting rock bottom.” (Id.).

Mahoney began participating in “group meetings with other people who similarly had reached the lowest points of their lives and who were also trying to turn their lives around.” (Id.). He also began regularly attending Alcoholics Anonymous meetings. (Id.). He has been sober since December 2006. (Id.).

Mahoney graduated from North Shore Community College in 2008 with an associate's degree in drug and alcohol rehabilitation. (Id.). He graduated from Salem State University in 2015 with a bachelor's degree in social work in 2015. (Id.).

From 2016 to 2019, Mahoney was employed at the Essex Country Club in Manchester, Massachusetts, working as a member of the kitchen utility staff. (Id. at 0085). In 2019, however, he “was forced into early retirement due to the development of Superficial Siderosis, a serious brain hemorrhage, which has made him very ill.” (Compl. ¶ 55).

Since 2009, Mahoney has “actively volunteered for the North Shore Health Project,” for which he received a client appreciation award in 2017. (Admin. Rec. at 0085). He “participate[s] in lobbying activities on behalf of the Massachusetts Coalition to End Homelessness.” (Id.). He also served as a board member for the Department of Mental Health Citizens Board in Lynn, Massachusetts. (Id.).

Mahoney has been married since 2006. (Id.).

B. Procedural Background
1. Plaintiff's Petition

On September 17, 2018, Mahoney submitted a petition to the BCNR requesting that his characterization of service be upgraded to “Honorable” or, in the alternative “General Under Honorable Conditions.” (Id. at 0018). He contended that an upgrade would be appropriate for three reasons. First, he contended that his “PTSD should be considered a mitigating factor for the misconduct that [he] engaged in that ultimately led to [his] discharge under Other than Honorable circumstances.” (Id.). He argued that two Department of Defense memoranda required “liberal and special” consideration of his PTSD as a mitigating factor. (Id.)....

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