Nieves v. McHugh

• Decision Date: 03 June 2015
• Docket Number: No. 5:14–CV–434–D.,5:14–CV–434–D.
• Citation: 111 F.Supp.3d 667
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Neftali Rivera NIEVES, Plaintiff, v. John M. McHUGH, Secretary of the Army, Defendant.

111 F.Supp.3d 667

Neftali Rivera NIEVES, Plaintiff,

v.John M. McHUGH, Secretary of the Army, Defendant.

No. 5:14–CV–434–D.

United States District Court, E.D. North Carolina, Western Division.

Signed June 3, 2015.

Neftali Rivera Nieves, Fayetteville, NC, pro se.

Matthew Lee Fesak, U.S. Attorney's Office, Raleigh, NC, for Defendant.

ORDER

JAMES C. DEVER, III, Chief Judge.

On July 30, 2014, Neftali Rivera Nieves ("Rivera" or "plaintiff") filed a complaint against John M. McHugh, Secretary of the Army ("Secretary" or "defendant") seeking to correct his military records [D.E. 1].¹ On November 6, 2014, Rivera filed an amended complaint [D.E. 14]. The amended complaint alleges that defendant violated numerous military regulations, section 504 of the Rehabilitation Act, see 29 U.S.C. § 794, the Administrative Procedure Act ("APA"), see 5 U.S.C. § 706, and the Fifth Amendment. Am. Compl. [D.E. 14] ¶¶ 26–40. On November 19, 2014, defendant moved to dismiss the complaint or, in the alternative, for summary judgment [D.E. 17]. On December 12, 2014, Rivera filed a cross-motion for summary judgment [D.E. 20]. As explained below, the court grants in part and denies in part defendant's motion, and grants in part and denies in part Rivera's motion for summary judgment.

I.

On January 30, 1986, Rivera enlisted in the United States Army ("Army"). See [D.E. 18–1] 41 (AR 36). On March 20, 2002, Rivera reenlisted in the Army. Id. 23–24 (AR 18–19). Rivera acknowledged that the "reenlistment is for an indefinite period and that [he] will be allowed to serve up to the retention control point for [his] current rank," which was then set as January 31, 2006. Id. 23, 41 (AR 18, 36); see [D.E. 18–2] 172–76 (AR 378–82).

Rivera was absent without leave ("AWOL") from February 6 to 11, 2004. [D.E. 18–1] 20, 52 (AR 15, 47). On March 17, 2004, Rivera received nonjudicial punishment for being AWOL. Id. 42 (AR 37); [D.E. 18–2] 33–34 (AR 239–40) (record of the Article 15 disciplinary hearing).

Rivera was again AWOL from July 31 to August 3, 2004. [D.E. 18–1] 20, 52 (AR 15, 47). On August 3, 2004, Rivera went to the Womack Army Medical Center ("WAMC") at Fort Bragg, North Carolina, with his wife. Rivera Decl. [D.E. 22] ¶ 4. While Rivera was completing intake at the hospital, a superior arrived and ordered Rivera to leave with him and undergo a command-directed urinalysis. See id. ¶¶ 4–5; [D.E. 18–1] 57, 69, 73 (AR 52, 64, 68). Rivera asserts that the superior ordered Rivera to leave with him to stop Rivera from self-referring at the hospital. [D.E. 18–1] 69 (AR 64). The urinalysis tested positive for cocaine. [D.E. 18–2]9, 148 (AR 215, 354). The superior returned Rivera to WAMC, where Rivera remained until August 9, 2004, and where he was diagnosed, in part, as having a "cocaine dependence in sustained remission." [D.E. 18–1] 42, 69 (AR 37, 64).

On August 30, 2004, Rivera received nonjudicial punishment for being AWOL and using cocaine between July 30 and August 3, 2004. Id. 42 (AR 37); cf. id. 77–78 (AR 72–73) (noting that Rivera appealed his punishment).

On February 28, 2005, Rivera requested to be released from active duty on February 28, 2006, and to be placed on the retirement list on March 1, 2006. Id. 17 (AR 12). Rivera stated that his "current ETS," or Expiration of Term of Service, was February 8, 2006, at which point he would have twenty years of service in the Army. Id. cf. id. 20 (AR 15) (noting that Rivera's ETS was January 31, 2006); but see id. 23 (AR 18) (noting that Rivera's enlistment was for an indefinite period).

On July 3, 2005, Rivera's commander notified Rivera that he intended to recommend Rivera's discharge based on Rivera's cocaine use in 2004, two periods of being AWOL, and a citation for driving while impaired from July 2002. Id. 42 (AR 37).

On July 8, 2005, Rivera's commander notified Rivera that a separation action had been initiated based on an alleged pattern of misconduct. See id. 35, 215–16 (AR 30, 210–11). On July 13, 2005, Rivera asked the Army to withdraw the separation action and that "he be allowed to retire for years of service." Id. 42 (AR 37). On July 22, 2005, Rivera consulted with legal counsel. Id. 35 (AR 30). On August 10, 2005, Rivera was notified to appear before the administrative separation board. Cf. id. 35–36 (AR 30–31).

On August 31, 2005, Rivera asked the Army to withdraw the separation action because his commander's notification form, which recommended separation, improperly relied on records from Rivera's personnel file that were for use only in a court-martial action. Id. 204, 211 (AR 199, 206); cf. id. 114 (AR 109) (official release form, dated March 4, 2005, noting that the release of Rivera's Official Military Personnel File was "for court-martial action use only").

On September 12, 2005, Rivera was admitted to WAMC because of a "[s]uicide attempt by self-inflicted laceration of left forearm." Id. 26 (AR 21). On October 2, 2005, Rivera was released from WAMC. Id.

On September 29, 2005, while Rivera was admitted at WAMC, Rivera signed a waiver of appearance at the scheduled administrative separation board. Id. 25 (AR 20). The board then met without Rivera present. Id. 171–79 (AR 166–74). After the meeting, the board recommended Rivera's discharge under other than honorable conditions.Id. 176–78 (AR 171–73).

On October 26, 2005, Major General Virgil Packett reviewed Rivera's administrative discharge packet and recommended that the Army Human Resources Command ("HRC") approve Rivera's discharge. Id. 168 (AR 163).

In November 2005, Rivera's superiors recommended that Rivera's request for voluntary retirement be denied. See id. 99, 101–02 (AR 94, 96–97). On January 3, 2006, Brigadier General Robert Woods, the Director of Enlisted Personnel, requested that the Assistant Secretary of the Army for Manpower and Reserve Affairs approve Rivera's discharge. Id. 167 (AR 162). On February 15, 2006, the HRC approved the involuntary separation of Rivera with an "Under Other Than Honorable Conditions discharge." Id. 32, 36 (AR 27, 31). On February 27, 2006, the Army officially discharged Rivera. Id. 42 (AR 37).

On September 21, 2006, Rivera requested a review of his discharge. Id. 147–48 (AR 142–43). Rivera argued that the board improperly relied on "limited use" information and that the Army should characterize his discharge as honorable. Id. Rivera also asserted that other "discriminating and prejudiced" evidence was wrongfully introduced, including an Army document from 1986 detailing his cocaine use. See id. 148 (AR 143).

On January 18, 2008, the Army Discharge Review Board ("ADRB") granted Rivera partial relief and upgraded the characterization of his discharge to honorable. Id. 33 (AR 28). The ADRB based its decision to change the characterization of the discharge on the government's introduction of "limited use information" at the separation hearing. Id. 36–37 (AR 31–32). The ADRB concluded that the separation itself was "fully supported by the record." Id.

On March 24, 2008, Rivera applied for a further correction of his military records and asked, among other things, for approval of retirement and a notation on his records that he served in Operation Enduring Freedom. Id. 68 (AR 63); cf. id. 127–30 (AR 122–25) (December 30, 2002 unit deployment order to Iraq that includes Rivera). In his application, Rivera argued that he had been improperly extended past his ETS and had not been allowed to retire when he reached twenty years of service. Id. 69–70 (AR 64–65).

On August 6, 2008, the Army Board for Correction of Military Records ("ABCMR") denied Rivera's request for his military record to be changed. Id. 39 (AR 34). The ABCMR concluded that Rivera's "request for retirement was properly disapproved since he was being considered for separation due to a pattern of misconduct." Id. 44 (AR 39). Rivera was told he could "request reconsideration of this decision within one year" if he presented new evidence or argument that the ABCMR did not originally consider. Id. 39 (AR 34).

On March 23, 2012, Rivera applied to the Army Review Boards Agency for a review of his discharge and the August 6, 2008 ABCMR decision not to permit him to retire with years in service. Id. 47–48 (AR 42–43). Rivera asked "to be retired following twenty years of service, in the pay grade of E–4, with retroactive pay and benefits to February 27, 2006." Id. 48 (AR 43). Rivera claimed that he did not discover that the "decision of the ABCMR ... was in error" until he spoke with a lawyer in October 2011. Id.

On December 16, 2012, the ABCMR denied Rivera's request for reconsideration. Id. 6 (AR 1). In its letter of denial, the ABCMR noted that Rivera's "request for reconsideration was not received within one year of the ABCMR's original decision." Id. The ABCMR notified Rivera that it would "not consider any further requests for reconsideration of this matter" but that Rivera had "the option to seek relief in a court of appropriate jurisdiction." Id. On July 30, 2014, Rivera filed the instant action. Compl. [D.E. 1].

II.

Defendant moved to dismiss the complaint for lack of subject-matter jurisdiction, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. [D.E. 17]; see Fed.R.Civ.P. 12(b)(1). Rivera must establish jurisdiction. See, e.g., Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) ; Richmond, Fredericksburg & Potomac R.R. v. United States, 945 F.2d 765, 768 (4th Cir.1991). In reviewing a Rule 12(b)(1) motion, a court regards "the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir.1999) (quotation omitted). "The district court should apply the standard applicable to a motion for summary judgment, under which the nonmoving party must set forth specific facts beyond the pleadings to show that a genuine issue of material fact [concerning...