United States District Court, W.D. North Carolina, Charlotte Division
J. Conrad, Jr., United States District Judge
MATTER comes before the Court on Defendant Secretary of the
Ray Maybus' (“Defendant”) Motion for Summary
Judgment, (Doc. No. 9); Plaintiff Hubert Reape's
(“Plaintiff”) Motion for Summary Judgment, (Doc.
No. 12); and the memoranda and exhibits submitted in support
of and in opposition to each motion. For the reasons stated
below, the Court grants Defendant's Motion for Summary
Judgment and denies Plaintiff's Motion for Summary
case is the latest episode of Plaintiff's attempt to
upgrade his discharge status from the United States Marine
Corps. On September 15, 1983, Plaintiff was discharged from
the Marine Corps as “Other than Honorable, ” but
seeks to be upgraded to “Honorable” or
“General Under Honorable Conditions.” (Doc. 1 at
5). Specifically, Plaintiff challenges the denial of his
request for upgrade by the Board of Correction of Naval
Records (“BCNR”) because the decision was not
sufficiently clear regarding its findings and conclusions,
failed to make determinations necessary to resolve
Plaintiff's request for a discharge upgrade, made
findings that are not supported by substantial evidence, and
involved the review of unfairly prejudicial material that was
not provided to Plaintiff. (Doc. No. 12-1)
18-year old in 1980, Plaintiff enlisted in the Marine Corps
for a term of four years of active service. (Doc. No. 7 to
7-12: Administrative Record (“A.R.”) at 27).
Plaintiff's term was cut short due to his discharge after
just over three years in service, during which Plaintiff
received several commendations. (Id.).
Notwithstanding the commendations, Plaintiff also received
four non-judicial punishments (“NJPs”) for
violations of the Uniform code of Military Justice during his
service. (Id. at 209).
on July 9, 1980, Plaintiff received an NJP for failing to
obey a lawful order. (Id. at 209). Second, on August
26, 1981, Plaintiff received an NJP for failure to go to his
appointed place of duty. (Id.). Third, on September
22, 1981, Plaintiff received an NJP for absenting himself
from the U.S.S. Ponce, LPD-15 and for carrying a concealed
weapon, brass knuckles. (Id.). Fourth, on September
29, 1981, Plaintiff received an NJP for having knowledge of
and failing to report another sailor who was in possession of
illicit drugs. (Id.). Additionally, Plaintiff was
counseled repeatedly due to his repeated NJPs. On January 9,
1982, August 18, 1982, and June 15, 1983, Plaintiff was
counseled for his misconduct and informed of the potential
consequences for his misconduct, including disciplinary
action, administrative separation, judicial proceedings, and
discharge status consequences. (Id. at 207).
in May 1983, Plaintiff was found guilty of the wrongful use
of marijuana during a summary court martial proceeding.
(Id. at 68). On August 22, 1983, Plaintiff's
commanding officer notified him that the Plaintiff was going
to be recommended for administrative separation and could
receive an Other Than Honorable discharge. (Id. at
142). As part of the separation process, Plaintiff repeatedly
acknowledged and waived his rights to counsel and to an
administrative board hearing. (Id. at 143). On
September 15, 1983, Plaintiff was discharged under Other Than
Honorable conditions. (Id. at 27).
28 years later, on July 11, 2011, Plaintiff requested that
the BCNR upgrade his discharge status based on his
post-service conduct. (Id. 117). The BCNR denied
this request on April 18, 2012. (Id. at 112-13).
Over a year later, Plaintiff submitted a second request to
the BCNR. (Id. at 18-26). Plaintiff modified his
argument, contending that changes in Marine Corps policy had
an unjust impact and were not communicated to him, errors in
the discharge process existed, and Plaintiff's drug use
should be viewed more leniently due to the impact of
Plaintiff's service in Beirut. (Id.). On
September 2, 2014, the BCNR again denied Plaintiff's
request, stating that Plaintiff did not submit “any
material evidence or other matter not previously considered
by the Board.” (Id. at 4).
then instituted a civil suit before this Court on April 2,
2015, which was eventually remanded at the joint request of
the parties on July 20, 2015. Reape v. Mabus, No.
3:15-CV-00140-RJC-DSC (filed Apr. 2, 2015). According to the
supplemental record Defendant submitted, Defendant agreed to
remand the case because Plaintiff “was denied
reconsideration by someone in BCNR without proper
authority.” (Doc. No. 22 at 8). The improper denial
referred to is the September 2, 2014 letter signed by Brian
George. (Id. at 10). On September 22, 2015, the BCNR
issued a letter to Plaintiff denying his request that it
upgrade his discharge status. (A.R. at 1-3). The letter
stated that the BCNR considered Plaintiff's complaints
and allegations, but “concluded these factors were not
sufficient to warrant relief in your case because of the
seriousness of your repetitive misconduct, which included
drug abuse, and because there is sufficient evidence in the
record that is contrary to your allegations.”
(Id. at 3).
filed his complaint in the current suit on January 6, 2016,
seeking judicial review of the BCNR's September 22, 2015
decision. (Doc. No. 1). Plaintiff alleges that Defendant
violated the Administrative Procedure Act
(“APA”), due process, and BCNR regulations, and
that Defendant has unreasonably withheld and delayed
Plaintiff's discharge upgrade. (Id. at 3- 5). On
May 12, 2016, Defendant filed his Motion for Summary
Judgment. (Doc. No. 9). On May 26, 2016, Plaintiff filed his
Motion for Summary Judgment. Both parties timely filed
response and reply memoranda. (Doc. Nos. 14, 18, 19, and 23).
The cross motions for summary judgment are ripe for
judgment is appropriate where there is no genuine dispute as
to any material fact, and it appears that the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P.
56(c)(2); United States v. Lee, 943 F.2d 366, 368
(4th Cir. 1991). Any permissible inferences to be drawn from
the underlying facts must be viewed in the light most
favorable to the non-moving party. Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
587-88 (1986). The party moving for summary judgment bears
the burden of demonstrating the absence of any genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986). A factual dispute is genuine “if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is
material only if it might affect the outcome of the suit
under governing law. Id.
context of reviewing an administrative agency's decision,
“a motion for summary judgment ‘stands in a
somewhat unusual light, in that that administrative record
provides the complete factual predicate for the court's
review.'” Chan v. U.S. Citizenship and
Immigration Servs., 141 F.Supp.3d 461, 464 (W.D. N.C.
2015) (citations omitted). Section 706 of the APA limits a
court's role to “decid[ing] all relevant questions
of law, interpret[ing] constitutional and statutory
provisions, and determin[ing] the meaning or applicability of
the terms of an agency action.” 5 U.S.C. § 706
(2015). In other words, “it is the role of the agency
to resolve factual issues to arrive at a decision that is
supported by the administrative record, whereas ‘the
function of the district court is to determine whether or not
as a matter of law the evidence in the administrative record
permitted the agency to make the decision it did.'”
Sierra Club v. Mainella, 459 F.Supp.2d 76, 90
(D.D.C. 2006) (citing Occidental Eng'g Co. v.
Immigration & Naturalization Service, 753 F.2d 766,
769-70 (9th Cir. 1985); Nw. Motorcycle Ass'n v. U.S.
Dep't of Agric., 18 F.3d 1468, 1472 (9th Cir.
1994)). “Summary judgment thus serves as the mechanism
for deciding, as a matter of law, whether the agency action
is supported by the administrative record and otherwise
consistent with the APA standard of review.”
Id. (citations omitted). Furthermore, military
decisions receive “great deference” due to the
differences in military and civilian decisions and the
relevant expertise. See Rostker v. Goldberg, 453
U.S. 57, 65 (1981); Berry v. Bean, 796 F.2d 713, 716
(4th Cir. 1986). This deference creates “an unusually
deferential application of the ‘arbitrary and
capricious' standard.” Kreis v. Air Force,
866 F.2d 1508, 1515 (D.C. Cir. 1989).
generally argues that the BCNR's decision to deny him a
discharge upgrade violated his due process rights, the APA,
and the rules governing the BCNR. (Doc. No. 12-1 at 1).
Plaintiff specifically suggests that the decision is not
sufficiently clear regarding its findings and conclusions,
the decision makes findings that are not supported by
substantial evidence, Defendant's process involved review
of material that was unfairly prejudicial, and Defendant
reviewed information that was not provided to Plaintiff.
(Id. at 5). Defendant ...